                                                                            FILED
                             NOT FOR PUBLICATION                             JUL 25 2011

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



JULIE C. RIGGS,                                  No. 09-56633

               Plaintiff - Appellant,            D.C. No. 2:09-cv-03073-GHK-CT

  v.
                                                 MEMORANDUM *
MYSPACE, INC.; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Central District of California
                     George H. King, District Judge, Presiding

                              Submitted July 12, 2011 **

Before:        SCHROEDER, ALARCÓN, and LEAVY, Circuit Judges.

       Julie C. Riggs appeals pro se from the district court’s judgment dismissing

with prejudice her diversity action alleging state law claims of negligence, gross

negligence, “promissory fraud breach of contract,” and breach of implied-in-fact

contract. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). We affirm in part, reverse

in part, and remand.

      The district court properly dismissed Riggs’s negligence and gross

negligence claims, arising from MySpace’s decisions to delete Riggs’s user

profiles on its social networking website yet not delete other profiles Riggs alleged

were created by celebrity imposters, because these claims were precluded by

section 230(c)(1) of the Communications Decency Act. See Fair Hous. Council of

San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1170-71 (9th Cir.

2008) (en banc) (“[A]ny activity that can be boiled down to deciding whether to

exclude material that third parties seek to post online is perforce immune under

section 230.”).

      The district court properly dismissed Riggs’s “promissory fraud breach of

contract claim,” arising from MySpace’s alleged breach of an arbitration clause in

its Terms of Use, because Riggs failed to allege any legally cognizable damages.

See Erlich v. Menezes, 981 P.2d 978, 987 (Cal. 1999) (“[D]amages for mental

suffering and emotional distress are generally not recoverable in an action for

breach of an ordinary commercial contract in California.”); Navellier v. Sletten,

131 Cal. Rptr. 2d 201, 212 (Ct. App. 2003) (attorney’s fees and costs are not

recoverable unless an agreement or a statute specifically provides for them); Nagy


                                          2                                       09-56633
v. Nagy, 258 Cal. Rptr. 787, 790 (Ct. App. 1989) (“[D]amages for emotional

distress alone are not recoverable [for a fraud claim].”).

      However, the district court improperly dismissed Riggs’s implied-in-fact

contract claim, arising from her ideas for a MySpace website devoted to celebrities,

because Riggs alleged in her First Amended Complaint at paragraph 120 that she

told the News Corporation’s executive’s assistant that she wanted to “sell” her

ideas before she disclosed them. See Grosso v. Miramax Film Corp., 383 F.3d

965, 967 (9th Cir. 2004) (under California law, to establish a breach of an

implied-in-fact contract for disclosure of an idea, “the plaintiff must show that the

plaintiff prepared the work, disclosed the work to the offeree for sale, and did so

under circumstances from which it could be concluded that the offeree voluntarily

accepted the disclosure knowing the conditions on which it was tendered and the

reasonable value of the work”); Desny v. Wilder, 299 P.2d 257, 270 (Cal. 1956)

(there may be an implied-in-fact contract “if the idea purveyor has clearly

conditioned his offer to convey the idea upon an obligation to pay for it if it is used

by the offeree and the offeree, knowing the condition before he knows the idea,

voluntarily accepts its disclosure (necessarily on the specified basis) and finds it

valuable and uses it”).

      We do not consider Riggs’s contentions raised for the first time on appeal.


                                           3                                     09-56633
See Travelers Prop. Cas. Co. of Am. v. ConocoPhillips Co., 546 F.3d 1142, 1146

(9th Cir. 2008).

      Each side shall bear its own costs on appeal.

      AFFIRMED in part, REVERSED in part, and REMANDED.




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