Filed 7/29/26
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
CRYSTAL ARTERBERRY et al., B344295
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. 23STCV31145)
v.
PEET’S COFFEE, INC.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Carolyn B. Kuhl, Judge. Affirmed.
Singleton Schreiber, Benjamin I. Siminou, Jonna D.
Lothyan, Christopher R. Rodriguez and Andrew D. Bluth for
Plaintiffs and Appellants.
Benesch, Friedlander, Coplan & Aronoff and Michael D.
Meuti for Defendant and Respondent.
______________________
Civil Code section 1670.8,1 known colloquially as the “Yelp
law,” protects the right of consumers to post negative reviews of
businesses on platforms such as Yelp.com. The statute
invalidates provisions in consumer contracts “waiving the
consumer’s right to make any statement regarding the seller or
lessor or its employees or agents, or concerning the goods or
services” (id., subd. (a)(1)) and forbids sellers from “threaten[ing]
or . . . seek[ing] to enforce a provision made unlawful under this
section, or . . . otherwise penaliz[ing] a consumer for making any
statement protected under this section” (id., subd. (a)(2)). The
statute also creates a private right of action by consumers to
collect monetary penalties against “[a]ny person who violates this
section.” (Id., subd. (c).)
This case presents a narrow question of statutory
interpretation: May a consumer seek monetary penalties against
a company for including a contractual provision made illegal
under section 1670.8 as part of the terms and conditions on its
website, even if the company never threatened to enforce that
provision or take any action against the consumer? We hold
section 1670.8 outlaws non-disparagement clauses in consumer
contracts, but it unambiguously allows a consumer to bring a suit
for monetary penalties only when a seller attempts to enforce
such a provision or otherwise seeks to penalize a consumer.
TRIAL COURT PROCEEDINGS
On December 20, 2023, Crystal Arterberry and three other
plaintiffs filed a class action complaint against Peet’s Coffee, Inc.
(Peet’s) alleging causes of action for violation of section 1670.8
1 Unspecified statutory references are to the Civil Code.
2
and the Unfair Competition Law (UCL; Bus. & Prof. Code,
§ 17200). The plaintiffs alleged they were California citizens who
had made purchases from Peet’s website, and that the terms and
conditions of the website required them to agree not to submit
content to the website “ ‘intended to cause commercial harm’ ” to
Peet’s or to use Peet’s trademarks “ ‘in any manner . . . that
would disparage’ Peet[’s] products or brands.” The plaintiffs did
not allege that Peet’s ever threatened to enforce those provisions
against them, or even that the plaintiffs were aware of the
relevant terms and conditions when they visited Peet’s website.
The plaintiffs sought relief on behalf of all California residents
who either visited, used, or made purchases from Peet’s website.
Peet’s demurred, arguing the plaintiffs had failed to state a
claim because their terms and conditions did not violate section
1670.8, and that in any case, the plaintiffs could not succeed on
their claims without alleging that Peet’s threatened or sought to
enforce its terms and conditions against them. Peet’s argued the
UCL claim also failed because it was derivative of the section
1670.8 claim, and because the plaintiffs lacked standing as they
had not claimed to have suffered any economic damages. The
plaintiffs opposed the demurrer, taking issue with each of Peet’s
arguments.
Peet’s attached a copy of its terms and conditions as an
exhibit to the demurrer, and the plaintiffs do not challenge this
document’s accuracy. For the purposes of our statutory analysis,
we assume without deciding the following sections of the terms
and conditions on which plaintiffs rely violate section 1670.8,
subdivision (a)(1)’s ban on the waiver of consumer rights to make
statements about a seller or its goods. The first is a section on
trademarks, which lists a series of Peet’s trademarks and states,
3
in relevant part, “You may refer to Peet’s trademarks in a
manner that is not misleading and clearly acknowledges Peet’s
ownership of our marks. By using this website, you acknowledge
our ownership of our marks and agree not to challenge our rights.
You may not use any of Peet’s marks or trade dress in any
manner that would lead to confusion as to the source of any
product or service, in any manner that would falsely suggest that
Peet’s is affiliated with, endorses, or sponsors any product or
service, or in any manner that would disparage our marks and
brand.”
The document also includes a section governing the
submission of user reviews and other content on Peet’s website.
The section lists content that users may not submit, including
content that is “offensive, violent, promotes racism, bigotry,
hatred, harassment or physical harm of any kind,” pornographic
content, libelous or slanderous content, computer viruses, and
other standard categories of content moderation. This section
also includes a provision that “[y]ou may not submit content to
the [s]ite or use it in any manner that” “[i]s intended to cause
commercial harm to us or to benefit a third party at our expense.”
This section applies only to Peet’s website; it does not apply to
any other platform on which a consumer might post content.
The trial court sustained the demurrer. The court
concluded that section 1670.8 unambiguously allows actions for
civil penalties only when a party has threatened or sought to
enforce an illegal contract against a consumer. Merely proposing
or attempting to impose such a contract does not create a cause of
action. Because the statutory language was unambiguous, the
court found it unnecessary to proceed further, but the court
nevertheless found two additional factors supported its
4
conclusion. First, to the extent statutory history was relevant, it
supported the court’s position. Second, the lack of unmistakable
language supporting a private right of action for seeking to
impose an illegal contract counseled against recognizing such a
right. The court sustained the demurrer as to the UCL claim on
the ground that the plaintiffs failed to allege they suffered
economic damages as a result of Peet’s actions.
Because the plaintiffs did not state they could allege facts
supporting a claim that Peet’s sought or threatened to enforce the
terms and conditions against them, the court denied leave to
amend the complaint as to their section 1670.8 claim. The court
granted leave to amend the complaint as to the UCL claim to
allow the plaintiffs to allege they suffered economic harm, but the
plaintiffs did not do so, and the court entered judgment in favor
of Peet’s.
Plaintiffs timely appealed. They limit their appellate
challenge to section 1670.8, and have abandoned any argument
concerning their UCL claim or any claim that they suffered
economic harm.
STANDARD OF REVIEW
“ ‘The purpose of a demurrer is to test the sufficiency of a
complaint by raising questions of law.’ ” (Candelore v. Tinder,
Inc. (2018) 19 Cal.App.5th 1138, 1143.) “We review an order
sustaining a demurrer de novo, exercising our independent
judgment as to whether a cause of action has been stated as a
matter of law.” (Thompson v. Ioane (2017) 11 Cal.App.5th 1180,
1190.) In doing so, “ ‘[w]e assume the truth of the properly
pleaded factual allegations, [and] facts that reasonably can be
inferred from those expressly pleaded.’ [Citation.] But we do not
assume the truth of ‘contentions, deductions, or conclusions of
5
law.’ [Citation.] We liberally construe the complaint ‘with a view
to substantial justice between the parties,’ drawing ‘all
reasonable inferences in favor of the asserted claims.’ ” (Liapes v.
Facebook, Inc. (2023) 95 Cal.App.5th 910, 919.) “To survive a
demurrer, the complaint need only allege facts sufficient to state
a cause of action . . . .” (C.A. v. William S. Hart Union High
School Dist. (2012) 53 Cal.4th 861, 872.)
“When a demurrer is sustained 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.’ [Citation.] Plaintiff has the
burden to show a reasonable possibility the complaint can be
amended to state a cause of action.” (Hamilton v. Greenwich
Investors XXVI, LLC (2011) 195 Cal.App.4th 1602, 1609.)
“Where, however, amendment could not correct a deficiency in
the complaint or where the action is barred as a matter of law,
the demurrer is properly sustained without leave to amend.”
(State of California Auto. Dismantlers Assn. v. Interinsurance
Exchange (1986) 180 Cal.App.3d 735, 742.)
DISCUSSION
The Legislature enacted section 1670.8 to protect the right
of consumers to review products on the internet without fear of
retaliation. According to a report to the Assembly Committee on
the Judiciary, the legislation was inspired by the experience of a
couple in Utah who submitted a negative review of a retailer on
an online review site. Four years later, the retailer demanded
the couple pay a $3,500 fine, claiming the review “violat[ed] . . . a
non-disparagement clause hid[den] deep within the company’s
‘terms of use’ policy.” When the couple refused, the retailer
6
reported them to a credit-reporting agency, damaging their
credit. To prevent website operators from taking actions like
these against California consumers, the Legislature provided
that “[a]ny person who violates this section shall be subject to a
civil penalty” of up to $2,500 for the first violation and $5,000 for
each additional violation, “to be assessed and collected in a civil
action brought by the consumer, by the Attorney General, or by
the district attorney or city attorney of the county or city in which
the violation occurred.” (Id., subd. (c).)
The question in this case, a matter of first impression,2 is
what it means to “violate[] this section.” (§ 1670.8, subd. (c).)
Because this case revolves around section 1670.8’s interpretation,
we begin by quoting the text of the statute in full:
“(a)(1) A contract or proposed contract for the sale or lease
of consumer goods or services may not include a provision
waiving the consumer’s right to make any statement regarding
the seller or lessor or its employees or agents, or concerning the
goods or services.
2 The parties have cited two published federal district court
opinions addressing the issue. In Anderson v. United Parcel
Service of America, Inc. (C.D.Cal. 2024) 734 F.Supp.3d 1012, the
court held that a defendant may be liable for civil penalties even
if it never sought to enforce a non-disparagement clause. (Id. at
p. 1019.) In Shofet v. Zillow Inc. (C.D.Cal. 2024) 741 F.Supp.3d
866, the court disagreed with Anderson and held that there is no
cause of action unless a defendant attempts or threatens to
enforce an illegal provision. (Id. at pp. 875-877.) The court in
Shofet subsequently granted the plaintiffs’ motion for
reconsideration and dismissed the case for lack of standing.
Neither case binds us. (Ram’s Gate Winery, LLC v. Roche (2015)
235 Cal.App.4th 1071, 1080.)
7
“(2) It shall be unlawful to threaten or to seek to enforce a
provision made unlawful under this section, or to otherwise
penalize a consumer for making any statement protected under
this section.
“(b) Any waiver of the provisions of this section is contrary
to public policy, and is void and unenforceable.
“(c) Any person who violates this section shall be subject to
a civil penalty not to exceed two thousand five hundred dollars
($2,500) for the first violation, and five thousand dollars ($5,000)
for the second and for each subsequent violation, to be assessed
and collected in a civil action brought by the consumer, by the
Attorney General, or by the district attorney or city attorney of
the county or city in which the violation occurred. When
collected, the civil penalty shall be payable, as appropriate, to the
consumer or to the general fund of whichever governmental
entity brought the action to assess the civil penalty.
“(d) In addition, for a willful, intentional, or reckless
violation of this section, a consumer or public prosecutor may
recover a civil penalty not to exceed ten thousand dollars
($10,000).
“(e) The penalty provided by this section is not an exclusive
remedy, and does not affect any other relief or remedy provided
by law. This section shall not be construed to prohibit or limit a
person or business that hosts online consumer reviews or
comments from removing a statement that is otherwise lawful to
remove.” (§ 1670.8.)
The plaintiffs argue that a defendant may “violate[] this
section” (§ 1670.8, subd. (c)), and thus trigger a consumer’s right
to bring a cause of action, not only by threatening or seeking to
enforce a non-disparagement agreement or penalize a consumer
8
for speaking (id., subd. (a)(2)), but also simply by attempting to
create a consumer agreement prohibited by subdivision (a)(1).
The trial court explained why this interpretation is inconsistent
with the text of the statute, and we adopt its reasoning on this
question:
“Sub[divisions] (a)(1) and (b) of the statute, read together,
make clear that a contractual provision limiting a consumer’s
right to make a statement concerning a seller or the seller’s goods
or services cannot be enforced and is void. Sub[division] (a)(1)
states that a contract for sale of consumer goods or services may
not contain such a contractual provision. Sub[division] (b) states
that such a provision is contrary to public policy and ‘is void and
unenforceable.’ Therefore, if a seller offers to sell goods or
services conditioned on the buyer’s waiving her right to make a
statement about those goods or services, and if the buyer accepts
that offer, that provision in the resulting contract is
unenforceable. (See, e.g., Rest.2d, Contracts, § 178 [‘A promise or
other term of an agreement is unenforceable on grounds of public
policy if legislation provides that it is unenforceable’]; see also
Dameron Hospital Assn. v. AAA Northern California, Nevada &
Utah Ins. Exchange (2022) 77 Cal.App.5th 971, 988 [refusing to
enforce contract provision that was contrary to statutory law].)
However, sub[divisions] (a)(1) and (b), when read together, do not
say that a seller violates the law by offering a contract with a
term that limits a consumer’s right to make a statement about
the seller or the goods sold.
“Sub[division] (a)(2), by contrast, does define an unlawful
act. Sub[division] (a)(2) provides that it is ‘unlawful to threaten
or to seek to enforce’ a provision that is prohibited by
sub[division] (a)(1) or to ‘otherwise penalize’ a consumer for
9
making a statement that is ‘protected under this section.’
Sub[division] (c) imposes a civil penalty on ‘[a]ny person who
violates this section.’ . . . ”
“The only statutory language that can be read to refer to a
‘violation’ committed by a ‘person’ [as required by subdivision (c)
of section 1670.8] is subdivision (a)(2), which makes it ‘unlawful’
to commit certain acts, i.e., to ‘threaten or seek to enforce’ or
‘otherwise penalize’ a consumer. Subdivision (a)(1) does not refer
to any acts taken by a person; instead, it refers to ‘a contract or
proposed contract’ and what may be included in such contract.
Sub[division] (a)(1) does not make it unlawful to propose or to
offer to agree to a limitation on consumer speech. Rather
sub[division] (a)(1) makes a particular contract provision
unlawful, without reference to how the contract was agreed to or
procured. Thus, unlike sub[division] (a)(2), which defines an
unlawful action taken by a person, there is no predicate act under
sub[division] (a)(1) to which the penalty defined in sub[division]
(c) can attach. This distinction between actions in subdivision
(a)(2) and non-actions in subdivision (a)(1) must be given effect.
Sub[division] (a)(1) does not define a violation to which the
sub[division] (c) penalty can attach.”
The plaintiffs object to the court’s reasoning on the ground
that “speech-restricting provisions made unlawful by subdivision
(a)(1) [of section 1670.8] do not magically appear in consumer
contracts; they must be inserted by someone.” That is of course
true. But nothing in section 1670.8, subdivision (a)(1) makes the
act of inserting illegal language, or proposing or attempting to
enter into an illegal contract, unlawful. Any such verbs are
missing from this portion of the statute. This is not an academic
point; without language defining what constitutes a violation, it
10
is impossible to say how or how often a business that includes a
potentially illicit clause in the terms of use of its website would
violate the statute. Does the act of posting a non-disparagement
clause constitute a single violation, or, as the plaintiffs allege, is
it a separate violation with respect to every customer of the
business who resides in California? Does it matter whether a
customer reads the document or clicks on a button indicating
assent to the terms of use? Or does a cause of action accrue when
a consumer simply visits a website, so long as the website
includes fine print stating that anyone using the site agrees to be
bound to the terms of use? Because section 1670.8, subdivision
(a)(1) includes no language defining what conduct constitutes a
violation, a court would need to answer all these questions out of
nothing, essentially rewriting the statute in the process.
The Legislature knows how to penalize specific conduct, as
it did in section 1670.8, subdivision (a)(2), where it included the
relevant verbs: “It shall be unlawful to threaten or to seek to
enforce a provision made unlawful under this section, or to
otherwise penalize a consumer for making any statement
protected under this section.” (Ibid., italics added.) An
analogous provision of the Business and Professions Code
illustrates this difference. Section 16600 of the Business and
Professions Code provides that “[e]xcept as provided in this
chapter, every contract by which anyone is restrained from
engaging in a lawful profession, trade, or business of any kind is
to that extent void.” (Id., subd. (a).) This statute did not set forth
a private right of action for damages or civil penalties, but in
2023 the Legislature created a new cause of action to protect
employees from noncompete agreements: “An employer that
enters into a contract that is void under this chapter[, which
11
includes Business and Professions Code section 16600,] or
attempts to enforce a contract that is void under this chapter
commits a civil violation” (id., § 16600.5, subd. (d), italics added,
enacted by Stats. 2023, ch. 157, § 2), and “[a]n employee . . . may
bring a private action to enforce this chapter” (id., subd. (e)(1)).
Business and Professions Code section 16600.5, subdivision (d)
specifically makes the entry of a contract with the void term a
civil violation. We infer the lack of equivalent language in
section 1670.8 to reflect a deliberate choice by the Legislature.
The plaintiffs contend that it is possible to violate section
1670.8 merely by creating a contract with a non-disparagement
clause because the statute describes such clauses as “unlawful.”
They note that under subdivision (a)(2), “[i]t shall be unlawful to
threaten or to seek to enforce a provision made unlawful under
this section.” (Ibid., italics added.) In the plaintiffs’ view, this
must refer to subdivision (a)(1), and thus, the statute makes any
contract contrary to that subdivision unlawful. Even if this is
correct, it does not imply that the creation of a contract contrary
to subdivision (a)(1) constitutes a violation. The law frequently
uses the term “unlawful” to refer to any contract that is null and
void under public policy or statute. Thus, in Edwards v. Arthur
Andersen LLP (2008) 44 Cal.4th 937, our Supreme Court noted
that courts had held that “contracts that waive an employee’s
right to indemnification [for discharging the employee’s duties
are] null and void. [Citation.] Thus, indemnity rights are
nonwaivable, and any contract that does purport to waive an
employee’s indemnity right would be contrary to the law and
12
therefore unlawful to that extent.”3 (Id. at pp. 951-952, italics
added, fn. omitted.) The Civil Code reflects this use. Section
1670.8 is codified within the title of the Civil Code entitled
“Unlawful Contracts.” (Div. 3, pt. 2, tit. 4, §§ 1667-1670.15.)
That title lists a series of prohibited contracts, which are
described as “void” or “unlawful,” such as contracts in restraint of
marriage (§ 1669 [“void”]), contracts with unlicensed
telemarketers (§ 1670.6 [“unlawful”]), and contracts purporting to
allow deductions from a person’s wages to cover the costs of
emigrating and transporting the person to the United States
(§ 1670.7 [“void”]). These statutes merely invalidate the types of
contracts in question. Just as we saw previously in the case of
Business and Professions Code sections 16600 and 16600.5, when
the Legislature believes an additional remedy is necessary, it
creates a provision saying so explicitly. Thus, section 1670.10
makes installment purchase contracts for cats and dogs “void as
against public policy.” (Id., subds. (a)(1), (b).) A separate
subdivision of the statute states that the possessor of a dog or a
cat under an illegal contract “shall be deemed the owner of the
dog or cat and shall also be entitled to the return of all amounts
the consumer paid under the contract.” (Id., subd. (c).) Similarly,
3 The court in Edwards did not hold that the creation of an
unlawful contract triggered a private right of action. Instead, the
plaintiff sued for intentional interference with prospective
economic advantage, an element of which is that the defendant
committed a wrongful or unlawful act. (Edwards v Arthur
Andersen LLP, supra, 44 Cal.4th at pp. 943-944.) The court held
that the employer’s demand that its employee enter into an
unlawful contract met this requirement. (Id. at pp. 944-945, 951-
952.)
13
section 1669.7 provides that contracts for the payment of money
in exchange for producing knowledge of a crime, in violation of
Penal Code section 132.5, are “void as contrary to public policy.”
The statute goes on to state that “[t]he Attorney General or the
district attorney of the county in which a violation of [s]ection
132.5 of the Penal Code occurs may bring a civil action, or
intervene in any civil action, to enjoin the enforcement of a
contract that violates that section.” (§ 1669.7.) Under this
statutory schema, merely creating or attempting to enter into an
illegal contract, whether that type of contract is described as
“void” or “unlawful,” does not create an independent cause of
action unless the Legislature provides one explicitly. As we have
just explained, the Legislature did not do so for creating a
contract made invalid by section 1670.8.
The plaintiffs contend the trial court’s interpretation is
incorrect because section 1670.8, subdivision (c) states that “[a]ny
person who violates this section shall be subject to a civil
penalty.” (Ibid., italics added.) In the plaintiffs’ view, if the
Legislature had intended to restrict private rights of action only
to violations of subdivision (a)(2), it would have specified that
subdivision. Instead, according to the plaintiffs, the use of the
phrase “this section” indicates the Legislature contemplated that
a suit could be predicated on other subdivisions. In support of
their position, the plaintiffs cite People v. Lara (2010) 48 Cal.4th
216, where our Supreme Court interpreted analogous language in
a section of the Penal Code defining the maximum term of civil
commitment after the completion of a prison sentence. Under the
relevant provision of the statute, “[t]he time limits of this section
are not jurisdictional.” (Pen. Code, § 1026.5, subd. (a)(2).) The
defendant argued that the statute “really intended to say that the
14
time limits set out ‘in subdivision (a) [of Penal Code section
1026.5]’ are not jurisdictional” (Lara, supra, at p. 226), and thus
that the court lacked jurisdiction to civilly commit him because it
failed to meet a trial deadline specified in a different subdivision.
The Supreme Court rejected this argument on the ground that it
was contrary to the plain meaning of the statute. (Ibid.)
We agree with the plaintiffs that the phrase “this section”
in section 1670.8, subdivision (c) defines how far the subdivision
applies. Unlike Business and Professions code section 16600.5,
which creates a private right of action against any employer that
“attempts to enforce a contract that is void under this chapter,”
(id., subd. (d), italics added), section 1670.8, subdivision (c)
applies only to violations of section 1670.8 itself. It does not
follow that every subdivision within section 1670.8 is capable of
being “violate[d]” by a seller as set forth in subdivision (c). For
example, some of section 1670.8’s subdivisions establish
maximum penalties, provide procedures for enforcement, and
reaffirm that the statute’s remedies are not exclusive and that
website operators may continue to moderate online consumer
reviews and comments. These subdivisions establish rules but do
not define violations by a seller. The use of the phrase “[a]ny
person who violates this section” (id., subd. (c)) thus does not
demonstrate that the Legislature intended every subdivision of
section 1670.8 to be capable of violation and subject to monetary
penalty.4
4 This stands in contrast to section 1670.8.5, enacted
several years after section 1670.8, in which the Legislature
barred the inclusion of terms in contracts or proposed contracts
for the provision of services by a licensee that limit the
15
As the trial court explained, a provision cannot define a
violation unless it “refer[s] to . . . acts taken by a person.” Only
section 1670.8, subdivision (a)(2) does, and thus it is the only
portion of the statute that can be violated as that term is used in
subdivision (c). Lara does not hold otherwise. In that case, the
Supreme Court held that Penal Code section 1026.5, subdivision
(a)(2) makes all time limits within that statute non-jurisdictional,
but the court did not imply that every subdivision in the statute
contains a time limit.5 (See People v. Lara, supra, 48 Cal.4th at
p. 222 [“Various numbered paragraphs of subdivision (b) set out
specific time limits within which actions ‘shall’ be taken”].)
The plaintiffs also argue that the legislative history of
section 1670.8 supports their interpretation. They isolate certain
consumer’s ability to file a complaint with the seller’s licensing
board and to participate in a board investigation into the
licensee. Section 1670.8.5 provides that such contracts or
proposed contracts “shall not include” such a non-disparagement
or non-participation provision (id., subd. (a)), makes any such
waiver “void and unenforceable” (id., subd. (b)), and states that
“[v]iolation of this section by a licensee shall constitute
unprofessional conduct subject to discipline by the licensee’s
licensing board” (id., subd. (d)). Unlike section 1670.8, there is no
other provision in section 1670.8.5 that is capable of violation
other than subdivision (a), such that subdivision (d)’s reference to
“[v]iolation of this section by a licensee” necessarily refers to
subdivision (a).
5 The provision at issue in Lara undisputedly did contain a
time limit. It stated that a trial on extended commitment of a
criminal defendant “shall commence no later than 30 calendar
days prior to the time the person would otherwise have been
released, unless that time is waived by the person or unless good
cause is shown.” (Pen. Code, § 1026.5, subd. (b)(4).)
16
comments from various points in the drafting process prior to the
statute taking its final form. But such legislative history is
relevant only “ ‘[w]hen the language of a statute is ambiguous—
that is, when the words of the statute are susceptible to more
than one reasonable meaning, given their usual and ordinary
meaning and considered in the context of the statute as a
whole.’ ” (Make UC a Good Neighbor v. Regents of University of
California (2024) 16 Cal.5th 43, 55.) If, as is the case here,
“ ‘there is no ambiguity, “ ‘ “ ‘we presume the Legislature meant
what it said and the plain meaning of the statute governs.’ ” ’ ” ’ ”
(Ibid.)
That said, “the plain meaning rule does not prohibit a court
from determining whether the literal meaning of a statute
comports with its purpose. [Citation.] Courts have therefore
considered legislative history even in cases where the text of a
statute is clear; but only to confirm the interpretation already
apparent from the plain language . . . .” (Huff v. Securitas
Security Services USA, Inc. (2018) 23 Cal.App.5th 745, 755.) Our
review of the legislative history shows that the Legislature’s
primary purpose in enacting section 1670.8 was to protect
California consumers against situations like that faced by the
Utah couple against whom a seller sought to enforce a non-
disparagement provision. But under the plaintiffs’ interpretation
of the statute, efforts to enforce illegal non-disparagement
provisions would account for only a tiny minority of potential
fines. Section 1670.8 applies to everyone, be it a Fortune 500
company or a small family business. If, as the plaintiffs allege,
the use of a non-disparagement clause created a cause of action
with respect to each California resident who visited a website,
with a civil penalty of up to $2,500 for each such resident, then a
17
relatively small business with 10,000 online California customers
would face up to $25,000,000 in penalties for using insufficiently
precise content moderation and trademark enforcement language
in the terms and conditions of its website. The same business
would face no more than $5,000 in penalties for actually
threatening or seeking to penalize a consumer for posting a
negative review.6 In the more than 400 pages of legislative
history that the plaintiffs submitted for our review, we see
nothing to suggest the Legislature intended the statute to work
this way.
6 In this example, we assume that, as the plaintiffs argue,
the maximum penalty for threatening or actually seeking to
enforce the non-disparagement clause would be doubled from
$2,500 to $5,000 because a business would have violated the
statute twice—first by including an illegal non-disparagement
clause, and again by seeking to enforce that clause. (See
§ 1670.8, subd. (c).)
18
DISPOSITION
The trial court’s order sustaining the demurrer without
leave to amend is affirmed. The defendant is awarded its costs
on appeal.
CERTIFIED FOR PUBLICATION
WEINGART, J.
We concur:
BENDIX, Acting P. J.
M. KIM, J.
19