The opinion
Filed 12/30/21 Jane Does v. Salesforce.com CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION TWO
JANE DOES #1-50,
Plaintiffs and Appellants,
A159566
v.
SALESFORCE.COM, INC., (San Francisco County
Super. Ct. No. CGC19574770)
Defendant and Respondent.
The Jane Doe plaintiffs in this case allege that as minors they were
sexually trafficked and exploited by the website “Backpage” through
advertisements posted on the website by pimps and sex traffickers. They
filed a complaint for damages in San Francisco Superior Court against
Salesforce.com, Inc. (Salesforce), a company that allegedly contracted to
provide Backpage with software and services, while knowing that Backpage
was being used as a marketplace for commercial sex and sex trafficking. In
their Second Amended Complaint, at issue here, plaintiffs sought damages
from Salesforce for sex trafficking, negligence, and gross negligence.
Salesforce demurred that the complaint failed to state a claim on multiple
grounds, including that plaintiffs’ claims against it were barred by the federal
Communications Decency Act (47 U.S.C. § 230), which immunizes providers
of interactive computer services against claims that treat a provider as the
publisher or speaker of content created by a third party. The trial court
1
sustained Salesforce’s demurrer without leave to amend. Plaintiffs now
appeal, and we shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Allegations and Claims in the Second Amended Complaint
According to the operative Second Amended Complaint (SAC), the
website Backpage was a forum on which traffickers, pimps, and johns
communicated with each other. (SAC ¶¶ 2, 10, 137.) Plaintiffs, all of whom
were minors at the time of the incidents giving rise to the complaint, were
allegedly “caused . . . [to enter] sex trafficking and sexual exploitation”
through online ads that pimps and traffickers posted on Backpage. (SAC
¶¶ 131, 138.) Johns allegedly paid plaintiffs’ traffickers money for sex and
the traffickers paid the money to Backpage to run ads for the exploitation of
plaintiffs. (SAC ¶¶ 153-154.) Plaintiffs were “made victims of sex trafficking
by means of force, fear, fraud, deceit, coercion, violence, duress, menace, or
threat of unlawful injury to themselves and others, including family
members.” (SAC ¶ 178.)
Plaintiffs allege that the defendant, Salesforce, advertises itself as a
company that can drive business growth through applications and technology
that include customer relationship management (CRM) and market
analytics, among other things. (SAC ¶ 143.) The Salesforce CRM platform, a
type of software that Salesforce designed and administers, and for which
Salesforce provides operational support, offers Salesforce’s clients “tools” that
lead to the clients’ growth. (SAC ¶¶ 145, 147, 150.) Starting in about
December 2013, Backpage contracted with Salesforce for “licenses and other
assistance,” including CRM. (SAC ¶¶ 140, 149, 155-156.) Salesforce’s CRM
software provided Backpage a number of tools and platforms that Backpage
implemented and that led to Backpage’s growth. (SAC § 152.) The tools and
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platforms included, among other things, platforms for Backpage to contact
and procure customers, a data deduplication tool, means to identify and
categorize sales opportunities, means to manage marketing campaigns, and
means to manage customer histories and customer social media activity.
(SAC ¶ 150.)
Plaintiffs allege that Backpage’s growth, which Salesforce had
facilitated, led to Backpage needing additional Salesforce licenses and
assistance, which in turn led to higher-priced contracts with Salesforce, for
which Backpage paid with money it had received from the plaintiffs’
traffickers. (SAC ¶¶ 152-155.) Salesforce continued to contract with
Backpage and facilitate its growth even though Salesforce allegedly knew
“what Backpage was being used for, that several Backpage officials were
indicted for facilitating trafficking, and that [an unspecified Senate
subcommittee] had declared Backpage knowingly facilitated the sex
trafficking of minors,” and even though Salesforce allegedly had a duty “to
prevent atrocities such as sex trafficking from being proliferated by its
technology.” (SAC ¶¶ 158-159.) In particular, Salesforce allegedly engaged
in actions and omissions that include failing to monitor the use of its platform
for illegal activities, failing to monitor its customers to identify their
participation in illegal activity, providing services to enable and further
criminal activity, and violating California law. (SAC ¶¶ 186-187.)
Plaintiffs allege that Salesforce’s actions and omissions were part of a
civil conspiracy with Backpage to violate section 52.5 of the Civil Code
(human trafficking) and section 236.1 of the Penal Code (same); that
Salesforce acted with Backpage to deprive and violate the plaintiffs’ personal
3
liberty; and that Salesforce’s violations of the law caused injury and damage
to them.1 (SAC ¶¶ 177, 179, 182.)
Plaintiffs also allege that Salesforce’s actions and omissions constituted
negligence and caused their injuries. (SAC ¶¶ 183-190.) In addition,
plaintiffs allege that Salesforce’s actions and omissions involved an extreme
degree of risk, that Salesforce was consciously indifferent to the rights of the
plaintiffs, and that Salesforce’s actions and omissions constituted gross
negligence. (SAC ¶¶ 193-196.)
B. Proceedings in the Trial Court
Plaintiffs filed their original complaint against Salesforce in March
2019, alleging causes of action for sex trafficking under section 52.5 of the
Civil Code, negligence, negligence per se, gross negligence, and civil
conspiracy. About two weeks later, before Salesforce had responded, they
filed their First Amended Complaint, which alleged the same causes of
action. In response to the First Amended Complaint, Salesforce met and
conferred with plaintiffs about Salesforce’s anticipated grounds for demurrer,
including that plaintiffs’ claims were barred by section 230 of the
Communications Decency Act (47 U.S.C. § 230 (section 230)), which provides
1 Civil Code section 52.5 authorizes a victim of human trafficking, as
that term is defined in section 236.1 of the Penal Code, to sue for damages or
other relief. (Civ. Code, § 52.5, subd. (a).) Penal Code section 236.1,
subdivision (a), states that “[a] person who deprives or violates the personal
liberty of another with the intent to obtain forced labor or services, is guilty of
human trafficking.” That section further provides that “[a] person who
causes, induces, persuades, or attempts to cause, induce, or persuade a
person who is a minor at the time of the commission of the offense to engage
in a commercial sex act, with the intent to effect or maintain a violation of
[certain Penal Code sections concerning crimes involving sexual assault,
obscene matter, and extortion] is guilty of human trafficking.” (Pen. Code,
§ 236.1, subd. (c).)
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certain immunities to the providers or users of interactive computer services.
After the parties met and conferred, plaintiffs informed Salesforce they would
amend the First Amended Complaint to address some of the issues that had
been discussed, and the parties stipulated that plaintiffs could file a Second
Amended Complaint, to which Salesforce could then respond. When
plaintiffs later informed Salesforce they would stand on the First Amended
Complaint, Salesforce filed a demurrer on the grounds that plaintiffs failed to
allege facts sufficient to constitute any of their causes of action and that the
causes of action were barred by section 230.
Plaintiffs did not file a response to the demurrer; instead they filed a
Second Amended Complaint alleging causes of action for sex trafficking
under section 52.5 of the Civil Code, negligence, and gross negligence.
Salesforce again demurred, on the same grounds.
Plaintiffs opposed the demurrer and requested leave to amend in the
event that the trial court sustained the demurrer. The opposition was not
specific about how the Second Amended Complaint might be amended, except
as to the relationship between gross negligence and negligence, which is not
at issue in this appeal.2
On the Friday afternoon before the scheduled Monday morning hearing
on the demurrer, the trial court issued a tentative ruling sustaining the
demurrer without leave to amend. Later that Friday afternoon, plaintiffs
notified the court and Salesforce that they would contest the tentative ruling
at the hearing, and identified the portions of the ruling they would contest.
But on the Sunday night before the hearing, plaintiffs informed Salesforce
they had filed a request to dismiss the complaint without prejudice; according
2 In this appeal, plaintiffs address only their causes of action for sex
trafficking and negligence.
5
to court records, the request was electronically submitted to the court at
12:01 on Monday morning.
At the hearing, the parties argued the merits of the demurrer, as well
as whether the purported voluntary dismissal shortly after midnight
rendered the demurrer moot.
The trial court concluded that after the announcement of an adverse
tentative ruling on a dispositive motion, a plaintiff may not voluntarily
dismiss the action without prejudice to avoid the adverse result. Turning to
the merits of the demurrer, the court ruled that section 230 barred plaintiffs’
claims. The ruling was based on the court’s conclusion that Salesforce
qualified as a provider of an interactive computer service under the statute
and that because plaintiffs alleged that Salesforce’s platform and CRM
enabled Backpage to publish and disseminate the traffickers’ advertisements
that harmed them, plaintiffs were treating Salesforce as the publisher of
information provided by third parties. The court also concluded that because
plaintiffs sought to bring private state law civil claims against Salesforce (as
opposed to private federal civil claims under 18 U.S.C. § 1595 (section 1595))
recent amendments to federal law did not exempt their claims from section
230 immunity. The court sustained the demurrer without leave to amend. In
denying leave to amend, the court noted that plaintiffs already had an
opportunity to amend their complaint after Salesforce filed a prior demurrer
on the same grounds, a reference to the fact that Salesforce had demurred to
the First Amended Complaint and, before the court could rule on it, plaintiffs
filed their Second Amended Complaint. The court also stated that
amendment would be futile, because plaintiffs’ claims were barred by section
230 as a matter of law and could not be cured by amendment.
6
Plaintiffs moved for a new trial, arguing that their claims were not
barred by section 230 and that the court should have granted leave to amend.
Plaintiffs did not identify any facts they would allege or any claims they
would add if leave to amend were granted, stating only that an amendment
would “further clarify” the legal basis of the claims.3
The motion for new trial was denied, and plaintiffs timely appealed.
DISCUSSION
A. Standard of Review
Our standard of review is well-established. We accept as true the well-
pleaded allegations in the operative complaint. (Chiatello v. City and County
of San Francisco (2010) 189 Cal.App.4th 472, 480.) “ ‘ “ ‘We treat the
demurrer as admitting all material facts properly pleaded, but not
contentions, deductions or conclusions of fact or law. [Citation.] We also
consider matters which may be judicially noticed.’ [Citations.] Further, we
give the complaint a reasonable interpretation, reading it as a whole and its
parts in their context. [Citation.]” ’ [Citation.] We likewise accept facts that
are reasonably implied or may be interred from the complaint’s express
allegations. [Citations.] ‘ “ ‘A demurrer tests the legal sufficiency of the
complaint . . . .’ [Citations.] On appeal from a dismissal after an order
3 Plaintiffs stated only that an amended complaint would “further
clarify that: [¶] (1) Salesforce’s liability stems from the custom-tailored tools
Salesforce designed for Backpage to help Backpage engage in sex trafficking;
[¶] (2) Salesforce engaged in conduct wholly separate from the tortious
conduct Backpage was committing; [¶] (3) the ‘but-for’ causation test
Salesforce has argued for, and the Court has relied upon, is not the test in the
Ninth Circuit and has not been adopted by California courts; and [¶] (4) the
error of Salesforce’s argument is reinforced by the very passage of [Public
Law 115-164].” We discuss Public Law 115-164, the “Fight Online Sex
Trafficking Act” or “FOSTA,” post.
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sustaining a demurrer, we review the order de novo, exercising our
independent judgment about whether the complaint states a cause of action
as a matter of law. [Citations.]” ’ ” (Ibid.) Although our review is de novo, it
is plaintiffs’ burden to affirmatively demonstrate that the demurrer was
erroneously sustained as a matter of law, which means that plaintiffs must
show that they pleaded facts sufficient to establish each element of each
cause of action. (Intengan v. BAC Home Loans Servicing LP (2013) 214
Cal.App.4th 1047, 1052.) Issues of statutory construction, such as the
applicability of section 230 immunity at issue here, are questions of law
subject to de novo review. (California Taxpayers Action Network v. Taber
Construction, Inc. (2017) 12 Cal.App.5th 115, 125 (California Taxpayers).)
When the trial court has sustained a demurrer without leave to amend,
“ ‘we decide whether there is a reasonable possibility that the defect can be
cured by amendment: if it can be, the trial court has abused its discretion
and we reverse; if not, there has been no abuse of discretion and we affirm.
[Citations.] The burden of proving such reasonable possibility is squarely on
the plaintiff.’ ” (California Taxpayers, supra, 12 Cal.App.5th at p. 125.)
To make the required showing, which plaintiffs can do for the first time on
appeal, plaintiffs must “show[ ] on appeal what facts could be pleaded to cure
defects in the complaint and how they state a cause of action.” (Eghtesad v.
State Farm General Ins. Co. (2020) 51 Cal.App.5th 406, 411 (Eghtesad).) The
failure to show how an amendment would allow plaintiffs to state a cause of
action is fatal to a request for leave to amend. (Denny v. Arntz (2020) 55
Cal.App.5th 914, 926 (Denny) [citing Rakestraw v. California Physicians’
Service (2000) 81 Cal.App.4th 39, 43, for the proposition that plaintiff must
“ ‘clearly and specifically set forth the “applicable substantive law” and the
8
legal basis for amendment, i.e., the elements of the cause of action and
authority for it,’ and all specific factual allegations for the claim”].)
B. Analysis
The central issue in this appeal is whether Salesforce and its alleged
conduct fall within the provisions of section 230 such that Salesforce cannot
be held liable for human trafficking and negligence in this case as a matter of
law. Plaintiffs argue that section 230 does not bar their claims and that in
any event the trial court should have granted leave to amend. We disagree.
1. Applicability of Section 230
Section 230(c)(1) provides that “[n]o provider or user of an interactive
computer service shall be treated as the publisher or speaker of any
information provided by another information content provider.” (Italics
added.) Section 230(e)(3) provides that “[n]o cause of action may be brought
and no liability may be imposed under any State or local law that is
inconsistent with this section.” Salesforce argues that suing it for human
trafficking and negligence is inconsistent with section 230(c)(1) because
Salesforce is a provider of an interactive computer service and the causes of
action alleged against it treat it as a publisher or speaker of information that
is provided by someone else (that is, by Backpage or sex traffickers, but not
by Salesforce).
The provisions of section 230(c)(1) and 230(e)(3), often referred to as
“immunity provisions,” are broadly construed in cases that arise from the
publication of user-generated content. (Doe v. MySpace, Inc. (5th Cir. 2008)
528 F.3d 413, 418.) As our Supreme Court has explained in Hassell v. Bird
(2018) 5 Cal.5th 522, 534-535 (Hassell), the immunity provisions implement
the policy goals of section 230, which include “promot[ing] the continued
development of the Internet and other interactive computer services and
9
other interactive media” (§ 230(b)(1)) and “preserv[ing] the vibrant and
competitive free market that presently exists for the Internet and other
interactive computer services, unfettered by Federal or State regulation.”
(§ 230(b)(2).)
To claim immunity under section 230, a defendant must establish that
“ ‘(1) the defendant [is] a provider or user of an interactive computer service;
(2) the cause of action treat[s] the defendant as a publisher or speaker of
information; and (3) the information at issue [is] provided by another
information content provider.’ ” (Delfino v. Agilent Technologies, Inc. (2006)
145 Cal.App.4th 790, 804-805 (Delfino).) Although the facts of this case, as
alleged in the Second Amended Complaint, are not entirely parallel to the
facts of any of the cases cited by the parties, we conclude that plaintiffs’
allegations establish that Salesforce is immune from their claims under
section 230.
a. Salesforce Is a Provider of an Interactive Computer Service
An “[i]nteractive computer service” is defined to include “any
information service, system, or access software provider that provides or
enables computer access by multiple users to a computer server, including
specifically a service or system that provides access to the Internet.”
(§ 230(f)(2).) An “[a]ccess software provider” is a “provider of software
(including client or server software) or enabling tools that do any one or more
of the following: [¶] (A) filter, screen, allow, or disallow content; [¶] (B) pick,
choose, analyze, or digest content; or [¶] (C) transmit, receive, display,
forward, cache, search, subset, organize, reorganize, or translate content.”
(§ 230(f)(4).)
As reflected in the language above, the term “interactive computer
service” is broadly defined. The term is also broadly interpreted. It applies
10
to websites that allow third party users to post content, as plaintiffs
acknowledge, but it is by no means limited to websites, or to websites of that
kind. “The definition of ‘interactive computer service’ on its face covers ‘any’
information services or other systems, as long as the service or system allows
‘multiple users’ to access ‘a computer server.’ Further, the statute repeatedly
refers to ‘the Internet and other interactive computer services,’ (emphasis
added), making clear that the statutory immunity extends beyond the
Internet itself. [Citations.] Also, the definition of ‘interactive computer
service’ after the broad definitional language, states that the definition
‘include[es] specifically a service or system that provides access to the
Internet,’ § 230(f)(2) (emphasis added), thereby confirming that services
providing access to the Internet as a whole are only a subset of the services to
which the statutory immunity applies.” (Batzel v. Smith (9th Cir. 2003) 333
F.3d 1018, 1030.)
Zango, Inc. v. Kaspersky Lab, Inc. (9th Cir. 2009) 568 F.3d 1169
(Zango) provides an example of the breadth of the term “interactive computer
service.” In Zango, an online media company sued the distributor of software
that allegedly interfered with the use of the media company’s downloadable
programs. (Id. at p. 1170.) The court in Zango concluded that the defendant,
a company distributing software that “helps filter and block unwanted
malicious software,” is a “provider” of an “ ‘interactive computer service’ ”
under the terms of section 230(c). (Id. at pp. 1170, 1175.) In reaching that
conclusion the court rejected the plaintiff’s proposed interpretation of
“ ‘interactive computer service,’ ” which would have applied the term only to
services that “enables people to access the Internet or access content found on
the Internet.” (Id. at pp. 1175-1176.)
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Plaintiffs correctly note that Zango concerned immunity under section
230(c)(2)(B), a statutory provision that is not at issue here.4 (Zango, supra,
568 F.3d at p. 1170.) But Zango is still relevant, because section 230(c)(1) (at
issue here), and section 230(c)(2)(B) (at issue in Zango), both apply to a
“provider or user of an interactive computer service,” as “interactive computer
service” is defined in section 230(f).
We conclude that Salesforce, as described in the allegations of the
Second Amended Complaint, falls within the section 230 definition of a
“interactive computer service” because the only conclusion to be drawn from
plaintiffs’ allegations is that Salesforce is an “access software provider,” as
defined in section 230(f)(4). Plaintiffs allege Salesforce provided Backpage
with software that included tools that allowed Backpage to “contact and
procure customers,” “identif[y] and categoriz[e] sales opportunities,”
“gather[ ] and manag[e] information from Backpage’s traffickers and pimps’
public social media activity,” and “collect[ ] and manag[e] traffickers’ and
pimps’ data across multiple sources and channels.” (SAC ¶¶ 147, 150.) In
other words, plaintiffs allege that Salesforce is “a provider of . . . enabling
tools that . . . transmit, receive, display, forward . . . search, . . . organize, [or]
reorganize . . . content.” (§ 230(f)(4)(C).)
The Second Amended Complaint also includes allegations that
Salesforce meets the additional definitional requirement for “interactive
4 Section 230(c)(2)(B) states that “[n]o provider or user of an interactive
computer service shall be held liable on account of . . . any action taken to
enable or make available to information content providers or others the
technical means to restrict access to [material including that which the
provider or user considers obscene, lewd, lascivious, filthy, excessively
violent, harassing, or otherwise objectionable, whether or not such material is
constitutionally protected].” (Zango, supra, 568 F.3d at p. 1173.)
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computer service”—that the access software provider “provides or enables
computer access by multiple users to a computer server.” (§ 230(f)(2).) By
alleging that the tools provided by Salesforce to Backpage included a “secure
cloud storage database for Backpage to store” the details of its business (SAC
¶ 150); “licenses” for Backpage users to access the cloud database (SAC
¶¶ 152-155); and “platforms for Backpage to contact and procure customers”
(SAC ¶ 150), plaintiffs have alleged that Salesforce provided or enabled
computer access by multiple users at Backpage to a computer server or
servers.
b. Plaintiffs’ Causes of Action Treat Salesforce as a Publisher
or Speaker of Information Provided by Someone Other
than Salesforce
Having determined that the Second Amended Complaint alleges that
Salesforce is the provider of an interactive computer service, we must now
consider whether the alleged causes of action treat Salesforce as the
publisher or speaker of information provided by another information content
provider, as required for immunity under section 230(c)(1). (Delfino, supra,
145 Cal.App.4th at pp. 804-805.)
Here, the plaintiffs allege they were injured by online advertising,
placed on Backpage by pimps and traffickers, that caused them to enter sex
trafficking and be sexually exploited. (SAC ¶ 138.) In their causes of action
against Salesforce for sex trafficking and negligence, they seek to hold
Salesforce liable for their injuries. Those injuries, however, arose from
information provided online by pimps and traffickers in their ads, and not
from information provided by Salesforce, which plaintiffs seek to hold liable
by virtue of its breach of its purported duty “to monitor for and safeguard
from the use of its platform for illegal activities, including sex trafficking,”
and “to monitor its customer base to identify participation in an illegal
13
venture.” (SAC ¶¶ 186-188.) From these allegations we conclude that
plaintiffs seek to treat Salesforce as the publisher of ads created by a third
party, and that as a result Salesforce is immune from the claims under
section 230(c)(1).
“Section 230(c)(1) is concerned with liability arising from information
provided online.” (Barrett v. Rosenthal (2006) 40 Cal.4th 33, 49, italics
omitted.) It “provides immunity from claims by those offended by an online
publication.” (Ibid.) Although the terms “publisher” and “speaker” in section
230(c)(1) are “drawn from the law of defamation” (ibid.), the immunity
provided by section 230(c)(1) is not limited to defamation claims. (Barnes v.
Yahoo!, Inc. (9th Cir. 2009) 570 F.3d 1096, 1101-1102 (Barnes).) “[W]hat
matters is whether the cause of action inherently requires the court to treat
the defendant as the ‘publisher or speaker’ of content provided by another.
To put it another way, courts must ask whether the duty that the plaintiff
alleges the defendant violated derives from the defendant’s status or conduct
as a ‘publisher or speaker.’ If it does, section 230(c)(1) precludes liability.”
(Id. at p. 1102.)
Plaintiffs here do not contend that the information or content of the
advertisements that harmed them was provided by Salesforce. Instead,
relying on Doe v. Internet Brands, Inc. (9th Cir. 2016) 824 F.3d 846 (Internet
Brands), they argue that their claims do not relate to any decisions about
editing, monitoring, or removing third-party content, and therefore their
claims do not treat Salesforce as a publisher of the advertisements. This
argument is undercut by plaintiffs’ allegations that Salesforce had, and
breached, a duty to monitor the use of its platform and the activities of
Backpage. (SAC ¶ 186.)
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Internet Brands is in any event inapposite. In that case, the plaintiff,
an aspiring model, became a member of a networking website for models that
was operated by the defendant. (Internet Brands, supra, 824 F.3d at p. 848.)
The plaintiff posted her profile on the website and was contacted by two men
who identified her through the website, posed as talent scouts, and raped her
while she was attending a sham audition. (Id. at p. 849.) The plaintiff
alleged that the website owner and operator knew from an outside source
(and not from monitoring postings on the website) the predators and their
activities and knew that members who posted their profiles had been
victimized by the predators, but failed to warn members of the danger.
(Ibid.)
Internet Brands did not consider whether California law imposed a
duty to warn on the website owner, but simply considered whether section
230 barred such a claim. (Internet Brands, supra, 824 F.3d at p. 850.) In
determining that the claim was not barred, the Court of Appeals noted that
the failure to warn claim did not seek to hold the website owner liable as the
publisher or speaker of any user content. (Id. at p. 853.) In that respect
Internet Brands is different from the case before us (where plaintiffs seek to
hold Salesforce liable for harm caused through ads posted on Backpage by
pimps and traffickers), and from other cases alleging a duty arising from
failure to regulate access to or use of a platform or content. (See Doe II v.
MySpace, Inc. (2009) 175 Cal.App.4th 561, 573 [section 230 bars claims based
on decision “to restrict or make available certain material”]; Daniel v.
Armslist, LLC (Wisc. 2019) 926 N.W.2d 710, 726 [section 230 bars claims that
defendant “provided an online forum for third-party content and failed to
adequately monitor that content”]; Fields v. Twitter, Inc. (N.D. Cal. 2016) 217
F.Supp.3d 1116, 1123-1126 [section 230 bars claims arising from decision to
15
provide user accounts to ISIS, which used the accounts to post objectionable
content].)
Plaintiffs here seek to hold Salesforce liable for the effect of the ads
that Backpage customers posted on Backpage. Yet “[s]ection 230(c)(1) is
implicated not only by claims that explicitly point to third party content but
also by claims which, though artfully pleaded to avoid direct reference,
implicitly require recourse to that content to establish liability or implicate a
defendant’s role, broadly defined, in publishing or excluding third party
[c]ommunications.” (Cohen v. Facebook, Inc. (E.D.N.Y. 2017) 252 F.Supp.3d
140, 156.) The gravamen of plaintiffs’ claims against Salesforce is that
Salesforce software facilitated Backpage’s cultivation of sex traffickers as
customers. That Backpage and not Salesforce cultivated the customers is
clear from plaintiffs’ allegation that Backpage implemented Salesforce
software to “prepare the right outreach” to Backpage customers. (SAC
¶ 150.)
In alleging that Salesforce failed to prevent Backpage from using
Salesforce tools in Backpage’s business of soliciting ads from sex traffickers
(ads that allegedly caused the plaintiffs to be sexually trafficked and
exploited), plaintiffs essentially seek to hold Salesforce responsible as a
publisher of information in ads that Backpage customers posted on Backpage.
That plaintiffs would hold Salesforce liable as a publisher is clear from
plaintiffs’ allegations that Salesforce’s liability arises from its “[f]ailure to
monitor for and safeguard from the use of its platform” by Backpage for sex
trafficking and its “[f]ailure to monitor its customer base to identify
participation in an illegal venture” (SAC ¶ 186), which would require
Salesforce to monitor not just Backpage’s use of the CRM platform to
communicate with Backpage customers, but also the ads posted on Backpage.
16
(HomeAway.com, Inc. v. City of Santa Monica (9th Cir. 2019) 918 F.3d 676,
682 [immunity under section 230 attaches when a duty “would necessarily
require” an interactive computer service to “monitor third-party content”].)
c. Section 230 Preempts Plaintiffs’ State Law Claims for
Sex Trafficking
The immunity afforded by section 230(c)(1) does not apply to certain
criminal prosecutions for sex trafficking brought under state or federal law
(§ 230(e)(5)(B) & (C)), or to “any claim in a civil action brought under section
1595 of Title 18, if the conduct underlying the claim constitutes a violation of
section 1591 of that title.” (§ 230(e)(5)(A).) Although plaintiffs’ suit against
Salesforce is neither a criminal action nor a civil action brought under federal
law, plaintiffs argue that their sex trafficking claims are not barred by
section 230 because they are “not inconsistent” with section 230.
Plaintiffs argue that because the heading to section 230(c) is
“Protection for ‘Good Samaritan’ blocking and screening of offensive
material,” and because nothing in their complaint involves Salesforce acting
as a “Good Samaritan,” there is nothing inconsistent between plaintiffs’
claims and section 230. But section headings are “ ‘not meant to take the
place of the detailed provisions of the text.’ ” (Lawson v. FMR LLC (2014)
571 U.S. 429, 446 (Lawson).) Although section 230(c)(2) provides immunity
in situations where an internet computer service is used to restrict access to
obscene or otherwise objectional material and therefore addresses “Good
Samaritan” immunity, section 230(c)(1) is not limited in that way. In
discussing the “broad scope of section 230 immunity,” our Supreme Court has
explained that section 230(e)(3), “read in connection with section 230(c)(1)
and the rest of section 230, conveys an intent to shield Internet
intermediaries from the burdens associated with defending against state-law
17
claims that treat them as the publisher or speaker of third party content.”
(Hassell, supra, 5 Cal.5th at p. 544.)
In a further attempt to argue that their state law civil sex trafficking
claims are not inconsistent with section 230, plaintiffs refer us to Public Law
115-164, or “FOSTA,” which amended section 230(e) by adding section
230(e)(5). (Pub.L. No. 115-164 (Apr. 11, 2018) 132 Stat. 1253.) Plaintiffs
argue that the heading of section 230(e)(5), “No effect on sex trafficking law,”
shows that their state law sex trafficking claim is not inconsistent with
section 230. That heading, however, is no more dispositive than the heading
of section 230(c), and it does not override the specific provisions of section
230(e)(5). (Lawson, supra, 571 U.S. at p. 446.) Insofar as civil claims are
concerned, section 230(e)(5) applies only to “any claim in a civil action
brought under section 1595 of Title 18, if the conduct underlying the claim
constitutes a violation of section 1591 of that title.” (§ 230(e)(5)(A).)
Plaintiffs’ suit against Salesforce is not such a civil action.
In a related argument, plaintiffs refer us to the text of FOSTA. In the
preamble, Congress describes FOSTA as an act “[t]o amend the
Communications Act of 1934 to clarify that section 230 of such Act does not
prohibit the enforcement against providers and users of interactive computer
services of Federal and State criminal and civil law relating to sexual
exploitation of children or sex trafficking, and for other purposes.” (Pub.L.
No. 115-164, supra.) Congress further stated that “It is the sense of Congress
that—[¶] . . . section 230 . . . was never intended to provide legal protection to
websites that unlawfully promote and facilitate prostitution and websites
that facilitate traffickers in advertising the sale of unlawful sex acts with sex
trafficking victims.” (Ibid.) But these statements do not help plaintiffs here,
because prefatory language, even prefatory language that appears in a
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statute, “does not change the plain meaning of the operative clause.”
(Kingdomware Technologies, Inc. v. U.S. (2016) 579 U.S. 162, 173 [citing
Yazoo & Mississippi Valley R. Co. v. Thomas (1889) 132 U.S. 174, 188 for the
proposition that “prefatory clauses or preambles cannot change the scope of
the operative clause”]; see also Chambers v. Miller (2006) 140 Cal.App.4th
821, 825-826 [“[a] statute’s preamble . . . does not override its plain operative
language”].)
Because we conclude that plaintiffs’ claims are barred by section 230,
we need not reach Salesforce’s alternative argument that plaintiffs’ Second
Amended Complaint is properly dismissed because it fails to plead facts that
would establish each element of each of their causes of action.
2. Leave to Amend
Plaintiffs argue that the trial court erred in denying leave to amend,
and state that if leave had been granted they could have added a claim under
section 1595, and also could have added “more detailed” allegations showing
that their claims are not barred by section 230. The arguments lack merit.
To begin, we reject plaintiffs’ suggestion that because they had no fair
opportunity to amend their complaint in response to the demurrer the trial
court should have granted leave to amend. Plaintiffs rely on Eghtesad,
supra, 51 Cal.App.5th 406, where this court held that the trial court erred in
denying leave to amend an initial complaint. (Id. at pp. 413-414.) Here, in
contrast, the trial court denied leave to amend plaintiffs’ third complaint.
Further, plaintiffs here not only had the opportunity to amend their
complaint to consider and address the issues raised in their meet and confer
session with Salesforce and the subsequent demurrers; they also took
advantage of their opportunity to do so. Salesforce’s demurrer to the Second
Amended Complaint raised the same issues that had been raised in the
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demurrer to the First Amended Complaint. Plaintiffs chose to amend their
First Amended Complaint before the demurrer could be heard, but they did
not cure the defects Salesforce had identified.
We turn now to plaintiffs’ argument, made for the first time on appeal,
that if granted leave to amend, they would add a federal claim under section
1595, which authorizes victims of human trafficking to file civil actions to
recover damages and attorney fees. (§ 1595(a).) We are loath to conclude
that the trial court should have granted plaintiffs leave to amend their
complaint, which alleged only state law causes of action, to allege a new
cause of action under federal law when plaintiffs never indicated to the trial
court any desire or intention to add such a claim, including in their new trial
motion. To do so would be to hold that the trial court abused its discretion by
failing to research federal causes of action and invite plaintiffs to change
their legal theory in the absence of any indication that the plaintiff wished to
do so. (See Camsi IV v. Hunter Technology Corp. (1991) 230 Cal.App.3d 1525,
1528-1529 [absent a request for leave to amend in a specific way, there is
abuse of discretion in denying leave to amend “only if a potentially effective
amendment were both apparent and consistent with the plaintiff’s theory of
the case”].)
In any event, we reject plaintiffs’ argument because plaintiffs fail to
meet their burden to show that they can plead such a claim. As plaintiffs
observe, with certain exceptions, section 230 does not bar civil claims brought
under section 1595 “if the conduct underlying the claim constitutes a
violation of section 1591 of that title.” (§ 230(e)(5)(A.) Title 18 United States
Code section 1591 makes the sex trafficking of children a crime. But it is not
enough for plaintiffs to state in their opening brief that section 1595(a) allows
a victim of a violation of section 1591 to sue “the perpetrator (or whoever
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knowingly benefits . . . from participating in a venture which that person
knew or should have known has engaged in an act in violation of this
chapter).” (§ 1595(a).) Plaintiffs must specifically set forth the applicable
law, which means they must identify the elements of a violation of section
1591 and explain how the facts they have alleged, or could allege, state the
required elements of a violation. (Denny, supra, 55 Cal.App.5th at p. 926.)
They fail to do that. It is not enough for plaintiffs to simply represent, as
they do in their opening brief on appeal, that if given the opportunity to
amend they could allege some unspecified fact or facts. Nor does it suffice for
plaintiffs to merely point us to two pages of a First Amended Complaint their
attorneys filed against Salesforce and Backpage in federal court in the
Southern District of Texas on behalf of a different plaintiff altogether. The
Texas plaintiff purports to state causes of action under section 1595 against
Salesforce and Backpage, but nothing in plaintiffs’ brief (or on the pages of
the Texas complaint that plaintiffs’ cite in the brief) identifies or addresses
the elements of a violation of section 1591.5 Plaintiffs’ abbreviated and
belated attempt in their reply brief to outline the requirements of section
1591 is to no avail. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764
[points raised for the first time in a reply brief are not considered absent a
showing of good cause for failing to present them earlier].)
Plaintiffs also argue that they should have been granted leave to
amend their complaint to add allegations showing that section 230 does not
bar their claims against Salesforce. They identify five paragraphs they could
5 On July 7, 2020, plaintiffs filed their request that we take judicial
notice of the Texas complaint. Three days later, plaintiffs’ counsel filed a
Second Amended Complaint in the Texas action, purportedly in response to
Salesforce’s service of a motion for sanctions under rule 11 of the Federal
Rules of Civil Procedure.
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add to their Second Amended Complaint to make such a showing, but the
allegations in those paragraphs undermine plaintiffs’ argument that
Salesforce is not an interactive computer service.
According to the proposed paragraphs, Salesforce software and tools
allow Backpage to “process credit cards, . . . text potential and past
clients, . . . [and] reach more and more traffickers.” The software gives
Backpage the capacity for “direct marketing campaigns” and “information
gathering such as ad clicks and tracking internet activity of sex traffickers.”
Backpage used the software to market itself to its customers: Backpage, not
Salesforce, “actively obtain[ed] and monitor[ed] data and additional
information related to pimps and sex traffickers that were using Backpage.”
Backpage, not Salesforce, engaged in “marketing efforts” directed to sex
traffickers. Plaintiffs’ proposed paragraphs, which reiterate and expand
upon points made in the Second Amended Complaint, make even more clear
that Salesforce is an interactive computer service as defined in sections
230(f)(2) and 230(f)(4) and that plaintiffs’ claims seek to treat Salesforce as
the publisher of information provided by Backpage and others, contrary to
section 230(c)(1).
DISPOSITION
The judgment is affirmed. Defendant shall recover its costs on appeal.
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_________________________
Miller, J.
WE CONCUR:
_________________________
Stewart, Acting P.J.
_________________________
Kline, J.*
A159566, Jane Does #1-50 v. Salesforce.Com, Inc.
*Assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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