Filed 7/23/26 Moss v. GoDaddy.com CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR
MICHAEL MOSS et al., B346188, B347269
(Los Angeles County
Plaintiffs and Appellants, Super. Ct. No. 23STCV31166)
v.
GODADDY.COM, LLC, et al.,
Defendants and Respondents.
APPEAL from judgment of the Superior Court of the
County of Los Angeles, Carolyn B. Kuhl, Judge. Affirmed.
Singleton Schreiber, Benjamin Siminou, Jonna D. Lothyan,
Christopher R. Rodriguez and Andrew D. Bluth, for Plaintiffs and
Appellants.
Cozen O’Connor, Robert S. Clark and Nathan M. Dooley,
for Defendants and Respondents.
Plaintiffs Michael Moss, Jaeis Chon, William Vaz, and
Fuad Ahwal appeal from a judgment of dismissal following an
order sustaining the demurrer of defendants GoDaddy.com, LLC
(GoDaddy), GoDaddy Payments, LLC, and Poynt, LLC
(collectively, defendants) to the operative first amended class
action complaint. Plaintiffs alleged that defendants violated Civil
Code section 1670.8.1 This statute, sometimes known as the
“Yelp law,” provides that contracts for the sale of consumer goods
or services may not include provisions waiving a consumer’s right
to make statements about the seller or the purchased goods or
services. (§ 1670.8, subd. (a)(1).) The law makes it unlawful for a
seller to threaten or seek to enforce such waivers (id.,
subd. (a)(2)) and permits consumers to recover certain civil
penalties (id., subd. (c)).
Plaintiffs alleged that defendants violated the statute by
requiring them to agree to terms of service that included
prohibited waiver language. They did not, however, allege that
defendants made threats or took actions to enforce the terms of
service or otherwise penalize them. We conclude that plaintiffs
failed to state a claim entitling them to civil penalties and affirm
the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
We draw the following facts from the allegations in the first
amended complaint.
GoDaddy, a domain registrar and web hosting company,
operated an online store through which it sold products and
services such as domain names, web hosting, and security
services.
1 Undesignated statutory references in this opinion are to the
Civil Code.
2
Plaintiffs were consumers who made purchases through the
online store. During the checkout process, they were required to
accept GoDaddy’s Universal Terms of Service. According to
plaintiffs, the terms of service forbade them from “making any
statement that ‘contains false or deceptive language or
unsubstantiated or comparative claims regarding GoDaddy or
GoDaddy’s Services.’” They also prohibited plaintiffs from
posting “any ‘content on [GoDaddy’s] website that could result in
damage to GoDaddy’s business, operations, reputation or
shareholders . . . .’”
Plaintiffs asserted a single cause of action for violation of
section 1670.8. They alleged the above-quoted language was
prohibited by the statute, and by including it in the terms of
service, defendants sought to have plaintiffs waive their rights to
make protected statements.2 They alleged entitlement to civil
penalties for defendants’ repeated violations of the law.
Defendants demurred to the first amended complaint.
Among other grounds, they contended that section 1670.8 did not
provide a private right of action for violations of subdivision (a)(1)
alone. The trial court sustained the demurrer without leave to
amend.
2 Plaintiffs do not claim they were dissatisfied with any product or
service they purchased from defendants or that they wished to express
such dissatisfaction. They also do not allege defendants threatened or
sought to enforce any purportedly unlawful provision against them.
Instead, they contend that “each and every customer” who purchased
products or services from defendants’ online store during the period
covered by the statute of limitations is entitled to recover civil
penalties solely because defendants’ Universal Terms of Service
allegedly contained language prohibited by section 1670.8,
subdivision (a)(1).
3
Plaintiffs appealed from the ensuing judgment of
dismissal.3
DISCUSSION
A. Request for Judicial Notice
On appeal, both parties filed requests for judicial notice.
The requests are denied. (Jordache Enterprises, Inc. v. Brobeck,
Phleger & Harrison (1998) 18 Cal.4th 739, 748, fn. 6 [declining to
take judicial notice of materials that were not “necessary, helpful,
or relevant”]; see Quelimane Co. v. Stewart Title Guaranty Co.
(1998) 19 Cal.4th 26, 45, fn. 9 [noting it is unnecessary to request
judicial notice of published legislative history material; citation to
the material is sufficient].)
B. Standard of Review
We review an order sustaining a demurrer de novo.
(California Logistics, Inc. v. State of California (2008) 161
Cal.App.4th 242, 247.) “We assume the truth of the allegations
in the complaint, but do not assume the truth of the contentions,
deductions, or conclusions of law.” (Ibid.)
C. Overview of Section 1670.8
Subdivision (a) of section 1670.8 provides:
“(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
3 Plaintiffs filed two notices of appeal, one from the order and the
judgment and one from the judgment only. On our own motion, we
consolidate the appeals.
4
its employees or agents, or concerning the goods or
services.
“(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.”
Subdivision (c) provides that “[a]ny 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 . . . .”
D. Section 1670.8 Does Not Afford a Private Right of
Action for Violations of Subdivision (a)(1) Alone
Plaintiffs contend the trial court erred in finding that a
violation of subdivision (a)(1) was insufficient to state a cause of
action for violation of section 1670.8 absent allegations that the
defendants also violated subdivision (a)(2). They argue the text
and legislative history make it clear that the law created a
private right of action for violations of either subdivision.
1. Text of Section 1670.8
“A private party can sue for violation of a statute only
where the statute in question allows it.” (Mayron v. Google LLC
(2020) 54 Cal.App.5th 566, 571 (Mayron).) “The burden of
persuasion is with the party claiming a statutory right to sue.”
(San Diegans for Open Government v. Public Facilities Financing
Authority of City of San Diego (2019) 8 Cal.5th 733, 739 (San
Diegans).)
5
Courts first examine the text of the statute to determine if
there is a “‘clear, understandable, unmistakable’ indication of
intent to allow a private right of action.” (Mayron, supra, 54
Cal.App.5th at p. 571, quoting Lu v. Hawaiian Gardens Casino,
Inc. (2010) 50 Cal.4th 592, 597.) “It is not enough that the
statutory text suggests such a right. [Citation.] A clear
indication means the text cannot be reasonably susceptible of
competing interpretations.” (Id. at pp. 571–572, italics added.)
In requesting judicial notice of trial court orders that have
examined section 1670.8, plaintiffs describe the statute as just
that: “‘reasonably susceptible to more than one interpretation.’”
(Italics added). If the statute is susceptible to multiple
interpretations, plaintiffs are foreclosed from showing the
opposite—a “clear” indication that the Legislature intended to
confer the right to recover penalties whenever a contract
prohibits a consumer from making protected statements.
(Mayron, supra, 54 Cal.App.5th at p. 572.)
We agree that the text of the statute fails to provide a clear
and unmistakable intent to allow a private right of action for
violations of subdivision (a)(1). Though the parties cite no
precedential case deciding the issue, a federal district court has
analyzed it. It concluded: “[S]ubsection (a)(1) voids non-
disparagement clauses in contracts for the sale or lease of goods
and services, while subsection (a)(2) creates a cause of action
against those who attempt to enforce the clauses voided by
subsection (a)(1). This distinction comes from the fact that only
subsection (a)(2) contains language referring to unlawful
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conduct.” (Shofet v. Zillow Inc. (C.D. Cal. 2024) 741 F.Supp.3d
866, 876 (Shofet).4)
This reading accounts for the different language and
structure employed in subdivisions (a)(1) and (a)(2).
Subdivision (a)(1) states that waiver language “may not” be
included in contracts and appears to be a prohibition on content.
This language is distinct from the more definitive language used
in subdivision (a)(2), which states, “It shall be unlawful to
threaten or to seek to enforce a provision made unlawful under
this section . . . .” (§ 1670.8, subd. (a)(2), italics added.) From the
Legislature’s choice of different words in subsection (a)(1) and
(a)(2), we can presume it intended the two subdivisions to have
different meanings. (In re Anthony Q. (2016) 5 Cal.App.5th 336,
351, fn. 9 [“We generally presume the Legislature intended a
difference in meaning when it used different language in
different provisions in the same legislation”].)
In view of these differences, one reasonable interpretation
is that the Legislature intended for subdivision (a)(2) to make a
threat or attempt to enforce a provision prohibited by
subdivision (a)(1) an act that triggers penalties. Harmonizing the
two subdivisions in this manner avoids rendering parts of the
statute superfluous. (Wells v. One2One Learning Foundation
(2006) 39 Cal.4th 1164, 1207.) “[I]f the mere inclusion of a non-
4 Subsequently, the district court granted the plaintiffs’ motion
for reconsideration and remanded the case to state court on the ground
that plaintiffs lacked Article III standing. (Shofet v. Zillow Inc.
(C.D.Cal. Oct. 3, 2024, No. 2:24-cv-00092-SVW-BFM) 2024 U.S.Dist.
Lexis 236082.) The court did not revisit its analysis of section 1670.8.
We treat the court’s earlier decision as persuasive, non-binding,
authority.
7
disparagement clause is actionable under subsection (a)(1), then
subsection (a)(2)’s prohibition on threatening to enforce such a
clause becomes superfluous; all such instances would already be
captured by subsection (a)(1).” (Shofet, supra, 741 F.Supp.3d at
p. 876.)
Plaintiffs have not shown that section 1670.8’s text clearly
and unmistakably creates a private right of action whenever a
waiver described in subdivision (a)(1) is included in a contract.
The differences between the two subdivisions permit a reasonable
inference that the Legislature intended for subdivision (a)(1) to
operate as a shield and for subdivision (a)(2) to provide the
consumer with a sword when a seller threatens or takes action to
enforce a waiver to stifle consumer speech. (See Shofet, supra,
741 F.Supp.3d at p. 876.)
2. Section 1670.8’s Legislative History
Plaintiffs also fail to show that the legislative history
clearly establishes a private right of action accrues whenever
prohibited waiver language is included in a contract. (Mayron,
supra, 54 Cal.App.5th at p. 573 [legislative history can confirm
the Legislature’s intent to create a private cause of action, but “it
must be ‘clear’ that was the intent”].)
The parties agree that Assembly Bill No. 2365 (2013–2014
Reg. Sess.) (Assembly Bill 2365) was introduced after national
media outlets reported a dispute between a couple and an online
retailer. When the couple posted a negative review about the
retailer online, the retailer claimed they violated a non-
disparagement clause in a contract that they accepted when they
checked a box to complete their online order. The contract stated
the breach entitled the retailer to collect liquidated damages of
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$3,500. (Assem. Com. on Judiciary, Analysis of Assem. Bill
No. 2365 (2013–2014 Reg. Sess.) Apr. 22, 2014, p. 3.) When the
couple refused to remove their review, the retailer demanded
they pay the $3,500 penalty and reported the debt to a credit
reporting agency. (Id. at pp. 3, 4.) The bill’s author introduced
the measure because consumers “should not be financially
penalized for providing honest online statements relative to their
online retail transaction experience,” and state and federal law
did not yet make clear that such clauses in consumer contracts
were void and unenforceable. (Id. at p. 3.)
As introduced, section 1, subdivision (a) of Assembly
Bill 2365 provided:
“A contract or proposed contract for the sale
or lease of consumer goods or services is unlawful
if it includes a provision requiring the consumer
to waive his or her right to make any statement
regarding the consumer’s experience with the
business, or to threaten or seek to enforce such a
provision or to otherwise penalize a consumer for
making such a statement, unless the waiver of
this right was knowing, voluntary, and
intelligent. A provision in violation of this
section is unconscionable and against public
policy.”
(Assem. Bill No. 2365 (2013–2014 Reg. Sess.) as introduced
Feb. 21, 2014.) This version of subdivision (a) was linguistically
flawed, as it made a contract “unlawful if it includes” “to threaten
or seek to enforce” a waiver provision. (Ibid.)
An April 2014 amendment addressed this issue and
separated subdivision (a) into two subparts. (Assem. Amend. to
Assem. Bill No. 2365 (2013–2014 Reg. Sess.) Apr. 24, 2014.) New
subdivision (a)(1) retained the language that contracts and
9
proposed contracts within its scope would be “unlawful” if they
included a proscribed waiver.5 (Ibid.) New subdivision (a)(2)
stated: “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 regarding the
consumer’s experience with a seller or lessor, or its employees or
agent, unless the consumer has knowingly, voluntarily, and
intelligently waived his or her right to do so.” (Ibid.)
A Senate amendment in August 2014 struck the language
in subdivision (a)(1) that a contract “is unlawful if it includes” a
waiver. It was replaced with a statement that a contract “may
not include” such a provision. (Sen. Amend. to Assem. Bill
No. 2365 (2013–2014 Reg. Sess.) Aug. 11, 2014.) The bill was
enacted in this form.
The evolution of language after a bill’s original introduction
can offer insight into the Legislature’s intent. (People v. Tokash
(2000) 79 Cal.App.4th 1373, 1378.) Here, Assembly Bill 2365’s
history suggests the Legislature initially intended to designate
both the existence of prohibited waivers and actions taken to
enforce such waivers as unlawful. The Legislature later decided
to treat these matters differently, breaking them apart and
declining to describe contracts containing prohibited waivers as
“unlawful.” It restated subdivision (a)(1) so that it describes
what provisions a contract “may not” include. As enacted, only
5 It provided: “A contract or proposed contract for the sale or
lease of consumer goods or services is unlawful if it includes a
provision requiring the consumer to waive his or her right to make any
statement regarding the consumer’s experience with the seller or
lessor or its employees or agents, unless the waiver of this right was
knowing, voluntary, and intelligent.”
10
subdivision (a)(2) identifies unlawful actions: threatening
enforcement, seeking to enforce, or penalizing the consumer.
(§ 1670.8, subd. (a)(2).) From this, one reasonable inference is
that subdivision (a)(1) renders prohibited waivers unenforceable
(see Timney v. Lin (2003) 106 Cal.App.4th 1121, 1127 [courts will
not enforce a contract to perform an act prohibited by statute]),
while subdivision (a)(2) creates a cause of action against a seller
that takes affirmative steps against the consumer.
Plaintiffs direct us to committee reports generally stating
that “the bill,” as amended, established civil penalties for
violations. (See Sen. Rules Com., Off. of Sen. Floor Analyses, 3d
reading analysis of Assem. Bill No. 2365 (2013–2014 Reg. Sess.)
as amended Aug. 11, 2014, p. 2 [concerning civil penalty for
violations of “provisions of this bill”]; Assem. Conc. Sen. Amends.
to Assem. Bill No. 2365 (2013–2014 Reg. Sess.) as amended
Aug. 11, 2014, p. 1 [providing that any person “who violates the
bill” shall be subject to civil penalties].) They contend these
references show that violations of subdivisions (a)(1) and (a)(2)
were intended to be independently actionable. These conclusory
statements are insufficient to carry plaintiffs’ burden to show the
statute as enacted gives them a clear right to sue for a violation
of subdivision (a)(1) alone. (San Diegans, supra, 8 Cal.5th at
p. 739; Mayron, supra, 54 Cal.App.5th at p. 573.)
In sum, plaintiffs in this case have not shown there is a
private right of action under section 1670.8 for solely including
language proscribed by subdivision (a)(1) in a contract within the
law’s scope. Plaintiffs did not allege that defendants engaged in
conduct prohibited by subdivision (a)(2) and do not contend they
could amend their complaint to do so. The trial court properly
sustained the demurrer without leave to amend.
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DISPOSITION
The judgment is affirmed. Defendants shall recover their
costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MORI, J.
We concur:
ZUKIN, P. J.
TAMZARIAN, J.
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