Callahan v. PeopleConnect Inc.

1

2

3

4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

6

7 MEREDITH CALLAHAN, et al., Case No. 20-cv-09203-EMC

8 Plaintiffs, ORDER DENYING DEFENDANT’S

MOTION TO STAY PENDING

9 v. APPEAL; GRANTING IN PART AND

DENYING IN PART DEFENDANT’S

10 PEOPLECONNECT, INC., MOTION TO DISMISS AND STRIKE;

AND DENYING DEFENDANT’S

11 Defendant. MOTION TO STAY DISCOVERY

12 Docket Nos. 26, 28, 49

13

14

15 Plaintiffs Meredith Callahan and Lawrence Geoffrey Abraham have filed a class action

16 against Defendant PeopleConnect, Inc.1 According to Plaintiffs, PeopleConnect misappropriated

17 Plaintiffs’ names, photographs, and likenesses and used the same in advertising its products and

18 services, “including reprinted yearbooks and subscription memberships to the website

19 Classmates.com.” Compl. ¶ 2. Currently pending before the Court are three motions filed by

20 PeopleConnect: (1) a motion to stay pending appeal; (2) a motion to dismiss and strike2; and (3) a

21 motion to stay discovery. Having considered the parties’ briefs and accompanying submissions,

22 as well as the oral argument of counsel, the Court hereby DENIES the motion to stay pending

23 appeal; GRANTS in part and DENIES in part the motion to dismiss and strike; and DENIES the

24 motion to stay discovery.

25

26

1 Plaintiffs initially sued three affiliated entities but subsequently they voluntarily dismissed two of

the companies, thus leaving PeopleConnect as the sole defendant.

27

1 I. FACTUAL & PROCEDURAL BACKGROUND

2 In their complaint, Plaintiffs allege as follows.

3 PeopleConnect is a company that collects yearbooks, scans the yearbooks, and extracts

4 information from the yearbooks (such as names, photographs, schools attended, and so forth) to be

5 put into a database. See Compl. ¶ 53. It “aggregates the extracted information into digital records

6 associated with specific individuals,” and then the digital records are exploited commercially – to

7 promote and sell PeopleConnect’s products – but without the individuals’ consent. Compl. ¶ 53.

8 PeopleConnect sells products through its website (Classmates.com). The products sold on the

9 website are (1) reprinted yearbooks and (2) a subscription membership.

10 Plaintiffs give examples of how PeopleConnect has allegedly exploited their names,

11 likenesses, and so forth for commercial purposes. For example, Plaintiffs allege as follows

12 regarding Geoffrey Abraham. PeopleConnect has digital records related to Mr. Abraham that

13 come from yearbooks. See Compl. ¶ 22. Users of Classmates.com can type Mr. Abraham’s name

14 into a search bar. See Compl. ¶ 23. The search results provide a list of sixteen records associated

15 with Mr. Abraham. See Compl. ¶ 24. “When users click to view any of the records corresponding

16 to Mr. Abraham, . . . Classmates displays a page showing the photograph of Mr. Abraham and his

17 name, accompanied by a link marked ‘Own this yearbook today,’ which leads to a page soliciting

18 the purchase of the yearbook for $99.95.” Compl. ¶ 25.

19 As another example, when the search results provide the records associated with Mr.

20 Abraham, “adjacent to the list of records containing [his] name, photograph, and likeness” is an

21 advertisement promoting the subscription membership. Compl. ¶ 27.

22 According to Plaintiffs, “[b]y misappropriating and misusing millions of Californian’s

23 names, photographs, and likenesses without consent, [PeopleConnect] has harmed Plaintiffs and

24 the class by denying them the economic value of their likenesses, violating their legally protected

25 rights to exclusive use of their likenesses, and violating their right to seclusion. [PeopleConnect]

26 has also earned ill-gotten profits and been unjustly enriched.” Compl. ¶ 10.

27 Plaintiffs have asserted the following claim for relief:

1 Civ. Code § 3344(a) (providing that “[a]ny person who knowingly uses another’s

2 name, voice, signature, photograph, or likeness, in any manner, on or in products,

3 merchandise, or goods, or for purposes of advertising or selling, or soliciting

4 purchases of, products, merchandise, goods or services, without such person’s prior

5 consent . . . shall be liable for any damages sustained by the person or persons

6 injured as a result thereof”).

7 (2) Violation of California Business & Professions Code § 17200 (both the unlawful

8 and unfair prongs).

9 (3) Intrusion upon seclusion.

10 (4) Unjust enrichment.

11 II. MOTION TO STAY PENDING APPEAL

12 Previously, PeopleConnect moved to compel the instant case to arbitration, but the Court

13 denied the motion. See Docket No. 40 (order, filed on May 18, 2021). PeopleConnect has since

14 appealed that decision. See Docket No. 47 (notice of appeal). Now, PeopleConnect moves to stay

15 proceedings pending the Ninth Circuit’s disposition of that appeal.

16 A. Legal Standard

17

[A] district court faced with a motion to stay a case pending an

18 appeal of a denial to compel arbitration has discretion to grant or

deny the stay "depend[ing] on the case's particular facts [and]

19 circumstances." "In making this decision, many lower courts have

applied the traditional test that is used to determine whether there

20 should be a stay pending an appeal." This test involves four factors:

21 (1) whether the stay applicant has made a strong

showing that he is likely to succeed on the merits; (2)

22 whether the applicant will be irreparably injured

absent a stay; (3) whether issuance of the stay will

23 substantially injure the other parties interested in the

proceeding; and (4) where the public interest lies.[3]

24

The first two factors are the most critical.

25

In weighing these factors, the Ninth Circuit has applied a "sliding

26 scale" approach whereby the factors are balanced "so that a stronger

showing of one . . . may offset a weaker showing of another."

27

Under this sliding scale approach, a moving party who cannot show

1 a strong likelihood of success on the merits may nonetheless be

entitled to a stay where he shows that his appeal "raises serious legal

2 questions, or has a reasonable probability or fair prospect of

success." However, a party satisfying this lower threshold . . . "must

3 then demonstrate that the balance of hardships under the second and

third factors tilts sharply in its favor."

4

5 Jimenez v. Menzies Aviation Inc., No. 15-cv-02392-WHO, 2015 U.S. Dist. LEXIS 127875, at *3-5

6 (N.D. Cal. Sep. 23, 2015); see also Britton v. Co-op Banking Grp., 916 F.2d 1405, 1412 (9th Cir.

7 1990) (stating that the “Federal Arbitration Act allows the district court to evaluate the merits of

8 the movant’s claim, and if, for instance, the court finds that the motion presents a substantial

9 question, to stay the proceedings pending an appeal from its refusal to compel arbitration”)

10 (emphasis added).

11 The Court concludes that, in the instant case, PeopleConnect has failed to show a

12 likelihood of success on the merits. Although PeopleConnect has cited two federal district court

13 cases in support of its position, neither addressed Blanton v. Womancare, Inc., 38 Cal. 3d 396

14 (1985).

15 Furthermore, even if the two cases were enough to raise serious questions on the merits,

16 PeopleConnect would still have to show that the balance of hardships tips sharply in its favor in

17 order for a stay to be justified. PeopleConnect has failed to make that showing. For example,

18 PeopleConnect asserts that, if the Court were to deny a stay and proceed to rule on its motion to

19 dismiss and strike, that would be an adjudication on the merits; then, if the Ninth Circuit were to

20 reverse on the arbitration decision, this Court’s order on the motion to dismiss and strike “would

21 either become a non-binding advisory opinion or prejudice PeopleConnect’s position in

22 arbitration.” Reply at 1. Although PeopleConnect’s argument is not without any merit, it is not

23 persuasive. Even assuming that the Court were to deny the motion to dismiss and strike in its

24 entirety, that would not deprive PeopleConnect of the arbitral forum. The denial of the motion to

25 dismiss would not resolve the case or obviate an arbitration should it be so ordered.

26 PeopleConnect therefore would not suffer irreparable harm warranting a stay.

27 Accordingly, PeopleConnect’s motion to stay pending appeal is denied.

1 III. MOTION TO DISMISS AND STRIKE

2 Because the Court denies the motion to stay pending appeal, it addresses PeopleConnect’s

3 motion to dismiss and strike on the merits. In the motion to dismiss, PeopleConnect argues that:

4 (1) Plaintiffs’ claims are barred by federal law (specifically, the Communications Decency Act

5 and the Copyright Act); (2) Plaintiffs have failed to state a claim for relief for all four causes of

6 action; and (3) PeopleConnect’s conduct is protected by the First Amendment. In the motion to

7 strike, PeopleConnect argues that the California anti-SLAPP statute bars Plaintiffs’ complaint.

8 The Court addresses PeopleConnect’s arguments below.

9 A. Immunity Under the Communications Decency Act

10 As noted above, Plaintiffs have asserted four causes of action: (1) violation of § 3344 (the

11 right of publicity); (2) violation of § 17200 (unlawful and unfair prongs); (3) intrusion on

12 seclusion; and (4) unjust enrichment. According to PeopleConnect, all claims are barred by the

13 Communications Decency Act (“CDA”).

14 The CDA provides in relevant part as follows: “No provider or user of an interactive

15 computer service shall be treated as the publisher or speaker of any information provided by

16 another information content provider.” 47 U.S.C. § 230(c)(1). The Ninth Circuit has explained

17 that the statute “‘immunizes providers of interactive computer services against liability arising

18 from content created by third parties.’” Kimzey v. Yelp! Inc., 836 F.3d 1263, 1265 (9th Cir. 2016).

19 That is, the statute “‘protects from liability (1) a provider or user of an interactive computer

20 service[4] (2) whom a plaintiff seeks to treat, under a state law cause of action, as a publisher or

21 speaker (3) of information provided by another information content provider.’” Id. at 1268.

22 “Information content provider” is defined as “any person or entity that is responsible, in whole or

23 in part, for the creation or development of information provided through the Internet or any other

24 interactive computer service.” 47 U.S.C. § 230(f)(3).

25 1. Collateral Estoppel

26 In the instant case, PeopleConnect relies heavily on decisions issued by Judge Beeler in

27

1 Callahan v. Ancestry.com Inc., No. 20-cv-08437-LB, to support its claim of CDA immunity. See

2 Callahan v. Ancestry.com Inc., No. 20-cv-08437-LB, 2021 U.S. Dist. LEXIS 37811 (N.D. Cal.

3 Mar. 1, 2021) (hereinafter “Ancestry I”); Callahan v. Ancestry, No. 20-cv-08437-LB, 2021 U.S.

4 Dist. LEXIS 112036 (N.D. Cal. June 15, 2021) (hereinafter “Ancestry II”). In fact, PeopleConnect

5 contends that the Court must give Judge Beeler’s decisions collateral estoppel effect because the

6 plaintiffs in the Ancestry case are the same as Plaintiffs herein. See generally Collins v. D.R.

7 Horton, Inc., 505 F.3d 874, 884 (9th Cir. 2007) (stating that defensive collateral estoppel “‘occurs

8 when a defendant seeks to prevent a plaintiff from asserting a claim the plaintiff has previously

9 litigated and lost against another defendant’”).

10 The Court rejects the collateral estoppel argument. Judge Beeler’s Ancestry case was a

11 federal court case, but predicated on diversity jurisdiction. “‘[F]ederal common law governs the

12 claim-preclusive effect of’ a judgment rendered ‘by a federal court sitting in diversity.’” NTCH-

13 WA, Inc. v. ZTE Corp., 921 F.3d 1175, 1180 (9th Cir. 2019) (quoting Semtek Int’l Inc. v. Lockheed

14 Martin Corp., 531 U.S. 497, 508 (2001)). However, under the federal common law, where the

15 prior judgment was predicated on diversity jurisdiction, state law on preclusion applies rather than

16 federal law because “there is no need for a uniform federal rule.” Semtek, 531 U.S. at 508 (stating

17 that, “indeed, nationwide uniformity in the substance of the matter is better served by having the

18 same claim-preclusive rule (the state rule) apply whether the dismissal has been ordered by a state

19 or a federal court”); see also Taco Bell Corp. v. TBWA Chiat/Day Inc., 552 F.3d 1137, 1144 (9th

20 Cir. 2009) (stating that “[f]ederal common law requires application of ‘the law that would be

21 applied by state courts in the State in which the federal diversity court sits’”). Under California

22 law, “a judgment is not final for purposes of collateral estoppel while open to direct attack, e.g., by

23 appeal.” Abelson v. Nat’l Union Fire Ins. Co., 28 Cal. App. 4th 776, 787 (1994). In the instant

24 case, there is no dispute that the Ancestry plaintiffs have appealed Judge Beeler’s decisions to the

25 Ninth Circuit; therefore, collateral estoppel cannot apply under California law because there is no

26 final judgment.

27 In its papers, PeopleConnect protests the application of California law on collateral

1 state law will not obtain . . . in situations in which the state law is incompatible with federal

2 interests.” Semtek, 531 U.S. at 508. The Supreme Court provided an example: “If . . . state law

3 did not accord claim-preclusive effect to dismissals for willful violation of discovery orders,

4 federal courts’ interest in the integrity of their own processes might justify a contrary federal rule.”

5 Id. PeopleConnect contends that “this is a case where federal interests compel the application of

6 federal preclusion principles,” apparently because a federal issue – CDA immunity – is at stake.

7 Docket No. 60-2 (Def.’s Supp. Br. at 5). The Court is not persuaded. State collateral estoppel law

8 cannot be said to be incompatible with federal interests here, particularly as CDA immunity is not

9 an issue on which only federal courts can opine. See, e.g., Prager Univ. v. Google Llc, 2019 Cal.

10 Super. LEXIS 2034, at *19 (Cal. Sup. Ct. Nov. 19, 2019) (addressing CDA immunity). The Court

11 acknowledges the authority cited by PeopleConnect, see, e.g., Dow Agrosciences, LLC v. Bates,

12 No. 5:01-CV-331-C, 2003 U.S. Dist. LEXIS 20389, at *57-58 (N.D. Tex. Oct. 14, 2003) (applying

13 federal preclusion law in determining whether a federal court judgment based on diversity

14 jurisdiction should be given preclusive effect; indicating that there are federal interests in applying

15 federal preclusion law because the federal court judgment was based on federal preemption of

16 state law claims – i.e., there is an interest in “a nationally uniform policy enforcing a federal

17 preemptive regime”), but it is not binding authority and the Court does not find it persuasive.

18 Application of state law on collateral estoppel (in particular to the finality requirement) will not

19 impair in any systemic way the application of CDA immunity.

20 As to the merits, Plaintiffs argues persuasively that Ancestry should not be given

21 preclusive effect given that other district courts have reached differing conclusions on CDA

22 immunity in similar cases. See, e.g., Knapke v. Peopleconnect Inc., No. C21-262 MJP, 2021 U.S.

23 Dist. LEXIS 150249, at *10-11 (W.D. Wash Aug. 10, 2021) (concluding that PeopleConnect’s

24 “customized advertisement” involving the use of a yearbook photograph was not protected by the

25 CDA; PeopleConnect was not just the publisher of content provided by someone else but rather

26 was “the publisher of its own content, which is unprotected by the CDA”)5; Sessa v. Ancestry.com

27

1 Ops. Inc., No. 2:20-cv-02292-GMN-BNW, 2021 U.S. Dist. LEXIS 177337, at *29-32 (D. Nev.

2 Sept. 16, 2021) (concluding that defendant acted as information content provider and adding that,

3 even if it were not, “the Court cannot grant dismissal based on the facts alleged in the Complaint

4 because it is unclear whether the yearbook providers [i.e., publishers] – the ‘information content

5 providers’ who are ‘responsible . . . for the creation or development’ of the yearbooks – consented

6 to the information's publication on the internet”).

7 In other words, “‘[e]ven where the technical requirements are all met, the doctrine is to be

8 applied “only where such application comports with fairness and sound public policy.”’” Direct

9 Shopping Network, LLC v. James, 206 Cal. App. 4th 1551, 1562 (2012). In Parklane Hosiery Co.

10 v. Shore, 439 U.S. 322 (1979), the Supreme Court stated, in addressing offensive collateral

11 estoppel, that a trial court has discretion to determine when the doctrine should be applied and

12 that a trial court should not allow the use of offensive collateral estoppel where application would

13 be unfair to the defendant – e.g., “if the judgment relied upon as a basis for the estoppel is itself

14 inconsistent with one or more previous judgments in favor of the defendant.” Id. at 330. A

15 California state court has noted that, even though Parklane involved a federal court trial, “we

16 believe the principles articulated therein concerning the effect of inconsistent verdicts on the

17 application of collateral estoppel are equally pertinent to state court actions.” Sandoval v.

18 Superior Court, 140 Cal. App. 3d 932, 944 (1983) (addressing offensive collateral estoppel).

19 Similar concerns should inform defensive collateral estoppel as well. See, e.g., Missud v. City &

20 Cty. of S.F., No. 15-cv-05596-JCS, 2017 U.S. Dist. LEXIS 40799, at *56 (N.D. Cal. Mar. 21,

21 2017) (stating that a factor that “may be considered to determine whether the assertion of

22 defensive collateral estoppel is equitable [is] the potential for inconsistent outcomes”); Restat. 2d

23 of Judgments, § 29(4) (providing that “[a] party precluded from relitigating an issue with an

24 opposing party . . . is also precluded from doing so with another person unless . . . circumstances

25 justify affording him an opportunity to relitigate the issue” – e.g., “[t]he determination relied on as

26

27

their position. See Docket No. 71-1 (Reply at 3) (stating that, “because Ancestry II and Knapke

1 preclusive was itself inconsistent with another determination of the same issue”); id., comment (f)

2 (stating that “[g]iving a prior determination of an issue conclusive effect in subsequent litigation is

3 justified not merely as avoiding further costs of litigation but also by underlying confidence that

4 the result reached is substantially correct,” but, “[w]here a determination relied on as preclusive is

5 itself inconsistent with some other adjudication of the same issue, that confidence is generally

6 unwarranted”; “[t]hat such a doubtful determination has been given effect in the action in which it

7 was reached does not require that it be given effect against the party in litigation against another

8 adversary”).

9 2. Batzel

10 Turning to the merits of PeopleConnect’s CDA argument, the Court finds that it is not

11 persuasive. As noted above, the CDA “‘protects from liability (1) a provider or user of an

12 interactive computer service (2) whom a plaintiff seeks to treat, under a state law cause of action,

13 as a publisher or speaker (3) of information provided by another information content provider.’”

14 Id. at 1268. The third element has two subcomponents: (a) the information at issue must come

15 from an “information content provider” and (b) the information must be “provided by” the

16 information contention provider.

17 Regarding the first subcomponent, the CDA defines “information content provider” as

18 “any person or entity that is responsible, in whole or in part, for the creation or development of

19 information provided through the Internet or any other interactive computer service.” 47 U.S.C. §

20 230(f)(3). Here, the information at issue consists of the yearbooks. And the only third parties

21 who are plausibly creators or developers of the yearbooks are the yearbook authors/publishers.

22 See Sessa, 2021 U.S. Dist. LEXIS 177337, at *31 (holding that “the yearbook publishers, not

23 those who sent Ancestry yearbooks, are the relevant information content providers”). Yearbooks

24 users/purchasers clearly do not create the yearbooks. Nor can they be said to be developers of the

25 yearbooks given the plain meaning of the term “develop” as well as the construction that the Ninth

26 Circuit has endorsed in addressing whether a service provider is also an information content

27 provider. Cf., e.g., Fair Hous. Council v. Roommates.com, LLC, 521 F.3d 1157, 1167-68 (9th Cir.

1 content generally”; rather, the person or entity must “materially contribut[e]” to the content).

2 As for the term “provided by,” the Ninth Circuit gave important guidance for the term in

3 Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003). The Ninth Circuit stated that the term

4 suggests, at least, some active role by the “provider” in supplying

the material . . . . One would not say, for example, that the author of

5 a magazine article “provided” it to an interactive computer service

provider or user by allowing the article to be published in hard copy

6 off-line. Although such an article is available to anyone with access

to a library or a newsstand, it is not “provided” for use on the

7 Internet.

8 Id. at 1032-33 (emphasis added). The Ninth Circuit recognized, however, that a website operator

9 could be chilled from posting information if it “could not tell whether posting was contemplated”

10 by the provider. Id. To address this concern, the court held that

11 the focus should be not on the information provider's intentions or

knowledge when transmitting content but, instead, on the service

12 provider's or user's reasonable perception of those intentions or

knowledge. We therefore hold that a service provider or user is

13 immune from liability under § 230(c)(1) when a third person or

entity that created or developed the information in question

14 furnished it to the provider or user under circumstances in which a

reasonable person in the position of the service provider or user

15 would conclude that the information was provided for publication

on the Internet or other "interactive computer service."

16

17 Id.; see also Roommates.com, LLC, 521 F.3d at 1171 (stating that, under Batzel, “if the editor

18 publishes material that he does not believe was tendered to him for posting online, then he is the

19 one making the affirmative decision to publish, and so he contributes materially to its allegedly

20 unlawful dissemination[;] [he] is thus properly deemed a developer and not entitled to CDA

21 immunity”). In Batzel itself, the court noted that further development of the record might be

22 needed “to determine whether, under all the circumstances, a reasonable person in [the

23 defendant’s] position would conclude that the information was sent for internet publication, or

24 whether at least a triable issue of fact is presented on that issue.” Batzel, 333 F.3d at 1035.

25 In the instant case, the Court concludes that, at the very least, there is a question of fact as

26 to whether a reasonable person in the position of PeopleConnect (the service provider) would

27 conclude that the yearbook authors/publishers (the information content providers) intended the

1 published in the 1990s and early 2000s when “[t]he Internet was in its infancy and social media

2 did not exist.” Opp’n at 5. Moreover, there is a difference between publishing a yearbook for a

3 school or local community and publishing a yearbook on the internet where the audience is far

4 broader. Thus, it would be hard to conclude that, as a matter of law, PeopleConnect is a publisher

5 of information provided by another information content provider and is thus entitled to immunity

6 under the CDA.

7 PeopleConnect’s reliance on Judge Beeler’s Ancestry decisions is unavailing. In Ancestry

8 II, Judge Beeler indicated that, under Batzel, it was reasonable for Ancestry to believe that the

9 yearbooks at issue were being provided to it for publication on the Internet, but Judge Beeler’s

10 ruling appears to turn on her view that an information content provider could be people or entities

11 other than the yearbook author/publisher. See Ancestry II, 2021 U.S. Dist. LEXIS 112036, at *17-

12 18 (stating that, “whether the yearbooks were donated by other former students or obtained from

13 other sources, Ancestry is demonstrably not the content creator and instead is publishing third-

14 party content provided to it for publication”; “[n]othing in Batzel requires the original creator's

15 permission for publication”). But that view is not consistent with the express definition of

16 “information content provider” under the CDA; an information content provider is one who

17 created or developed the information at issue. In the instant case, the yearbook authors/publishers

18 are the only ones who meet that criteria.

19 At the hearing, PeopleConnect suggested that a service provider should be allowed to

20 assume that the person or entity who provided the information to the service provider was the

21 creator or developer of the information.6 Such an approach, however, would be contrary to Batzel

22 which focuses on the reasonable perception of the service provider. PeopleConnect fails to

23

6 At the hearing, PeopleConnect cited Caraccioli v. Facebook, 700 F. App’x 588 (9th Cir. 2017),

24

in support of its position. But Caraccioli is not on point. In Caraccioli, the plaintiff brought suit

against the defendant for its refusal to remove private images and videos of the plaintiff posted on

25

its website by a third party. See id. at 589 (noting that claims brought by the plaintiff included

defamation, public disclosure of private facts, and intentional and negligent infliction of emotional

26

distress). The Ninth Circuit held that the defendant had CDA immunity because it was a

republisher of material posted by the third party; the defendant did not become an information

27

content provider simply by reviewing the content of the third party’s account and deciding not to

1 explain why a service provider should not be held accountable if, e.g., it is obvious that the person

2 or entity providing information to the service provider is not the creator or developer of the

3 information. In such a situation, if it is obvious that the person or entity providing the information

4 is not the creator or developer of the information, then the service provider “is the one making the

5 affirmative decision to publish, and so . . . contributes materially to [the] allegedly unlawful

6 dissemination” of the information[;] [it] is thus properly deemed a developer and not entitled to

7 CDA immunity.” Roommates.com, 521 F.3d at 1171.

8 In the instant case, it is obvious that the yearbook users/purchasers were not the creators or

9 developers of the yearbooks. Instead, the yearbook authors/publishers were the content providers.

10 PeopleConnect cannot claim the benefit of CDA immunity, absent a reasonable basis to believe

11 that the yearbook authors/publishers intended for there to be publication on the Internet. This

12 presents a question of fact that cannot be resolved at the 12(b)(6) phase of proceedings.7

13 B. Copyright Preemption

14 According to PeopleConnect, even if there is a question of fact on CDA immunity, the

15 Copyright Act bars most of Plaintiffs’ claims – in particular, their § 3344, § 17200, and unjust

16 enrichment claims (but not their intrusion-on-seclusion claim).

17 1. Collateral Estoppel

18 Plaintiffs argue first that PeopleConnect is precluded from raising the copyright

19 preemption defense based on a decision from a Washington district court in Knapke. In Knapke –

20 where PeopleConnect was sued for the same basic conduct as that at issue in the case at bar – the

21 court rejected the copyright preemption defense because “‘a publicity-right claim is not preempted

22 when it targets nonconsensual use of one’s name or likeness on merchandise or in advertising.’”

23

7 There would also appear to be a question of fact as to whether PeopleConnect should be deemed

24

a developer of information itself – i.e., not just a mere service provider – to the extent it was not

simply republishing yearbook photographs and/or information. See Knapke, 2021 U.S. Dist.

25

LEXIS 150249, at *10-11 (holding that PeopleConnect was not protected by CDA immunity

because it was the publisher of its own content in creating an advertisement); Cf. Lukis v.

26

Whitepages, Inc., 454 F. Supp. 746, 763 (N.D. Ill. 2020) (stating that, “[i[n the present record,

Whitepages did not act as a mere passive transmitter or publisher of information that was

27

‘provided by another information content provider’[;] [r]ather, it is alleged to have actively

1 Id. at *12 (emphasis added).

2 In its papers, PeopleConnect contends first that Knapke should not be given collateral

3 estoppel effect because federal law on collateral estoppel should apply. That argument, like the

4 one above, is not persuasive. State courts often opine on copyright preemption even though it is a

5 federal defense, and the application of state law on collateral estoppel is not incompatible with

6 federal interests.

7 PeopleConnect asserts that Knapke cannot be given collateral estoppel effect because no

8 final judgment has been reached in that case. In response, Plaintiffs contend that a final judgment

9 need not be a formal final judgment closing the case in its entirety; rather, the question is whether

10 the Knapke court essentially reached a final decision in rejecting copyright preemption. Plaintiffs

11 are correct that a formal final judgment or decision is not necessary. See, e.g., Ensley v. Pitcher,

12 152 Wash. App. 891, 901 (2009) (“While the record does not include an entry of final judgment

13 under CR 54(b) as to the summary judgment dismissing Red Onion, there are no other indicia in

14 the record that the summary judgment decision was not final as a practical matter.”); Lee v.

15 Ferryman, 88 Wash. App. 613, 622 (1997) (“The second requirement is also satisfied because a

16 grant of summary judgment in favor of Ferryman in the Oregon action constitutes a final judgment

17 on the merits and has the same preclusive effect as a full trial of the issue. As one court noted,

18 ‘[i]t would be strange indeed if a summary judgment could not have collateral estoppel effect.

19 This would reduce the utility of this modern device to zero.’”). However, Plaintiffs have not

20 pointed to any Washington state court authority holding that a decision made at the pleadings

21 stage is sufficiently final to give rise to a preclusive effect. (Plaintiffs primarily relied on a

22 Seventh Circuit case, Gilldorn Savings Ass’n v. Commerce Savings Ass’n, 804 F.2d 390, 393 (7th

23 Cir. 1986) (applying federal law on collateral estoppel).) More important, even though it is clear

24 that the Knapke court rejected the copyright preemption defense in its decision, it is not clear that

25 the court was thereby foreclosing PeopleConnect from raising the defense again (i.e., after

26 discovery has been taken and a factual record has been developed). The Court, therefore, declines

27 to apply collateral estoppel and considers the merits of PeopleConnect’s copyright preemption

1 2. “Standing” to Assert Copyright Preemption

2 According to Plaintiffs, putting collateral estoppel aside, PeopleConnect still cannot invoke

3 copyright preemption because only a copyright holder or licensee has “standing” to assert

4 copyright preemption. See Opp’n at 8. (There is no dispute that PeopleConnect does not own the

5 copyrights to the yearbooks at issue, nor is it a licensee of the yearbooks.) In support of this

6 position, Plaintiffs rely on a California state case, KNB Enterprises v. Matthews, 78 Cal. App. 4th

7 362 (2000). In KNB, the plaintiff owned the copyright to certain erotic photographs. The

8 photographs were displayed without authorization on the defendant’s website. The plaintiff did

9 not sue for copyright infringement but rather asserted a violation of § 3344 because the models in

10 the photographs had assigned their § 3344 rights to the plaintiff. See id. at 364-65. The issue for

11 the court was “whether the noncelebrity models’ section 3344 claims, which plaintiff asserts by

12 right of assignment, are preempted by federal copyright law.” Id. at 368. The court concluded

13 that there was no preemption, noting, in relevant part, that “this [was] not a situation where the

14 models are asserting a right of publicity claim against the exclusive copyright holder in an effort to

15 halt the authorized distribution of their photographs. . . . [Rather,] plaintiff is asserting the models’

16 statutory right of publicity claim to halt the unauthorized display of the photographs.” Id. at 372-

17 73 (emphasis in original). “We do not believe a section 3344 claim is preempted . . . where, as

18 here, the defendant has no legal right to publish the copyrighted work.” Id. at 374 (emphasis

19 added).

20 Plaintiffs acknowledge that, in Jules Jordan Video, Inc. v. 144942 Canada Inc., 617 F.3d

21 1146 (9th Cir. 2010), the Ninth Circuit expressed disagreement with this part of KNB, stating as

22 follows:

23 Whether a claim is preempted . . . does not turn on what rights the

alleged infringer possesses, but on whether the rights asserted by the

24 plaintiff are equivalent to any of the exclusive rights within the

general scope of the copyright. The question is whether the rights

25 are works of authorship fixed in a tangible medium of expression

and come within the subject matter of the Copyright Act. If a

26 plaintiff asserts a claim that is the equivalent of a claim for

infringement of a copyrightable work, that claim is preempted,

27 regardless of what legal rights the defendant might have acquired.

1 plaintiff did own copyrights in the copied DVDs. In other words, under Plaintiffs’ position, a

2 defense of copyright preemption may be raised only when (1) the defendant is a copyright owner

3 or licensee or (2) the plaintiff is. See Opp’n at 8 (arguing that, “in this case, neither Plaintiffs nor

4 [PeopleConnect] own copyright[s] in Plaintiffs’ yearbooks[;] Plaintiffs do not and could not obtain

5 redress of their injuries by asserting a copyright claim”).

6 The problem for Plaintiffs is that the language from Jordan above does not focus on the

7 status of the plaintiff but rather on the rights being asserted by the plaintiff. Furthermore, at least

8 one court – admittedly, a state court – has rejected a similar argument

9 Plaintiff disagrees that federal copyright law preempts claims

asserted by anyone other than the copyright holder. It cites Silvers

10 v. Sony Pictures Entertainment, Inc. (9th Cir. 2005) 402 F.3d 881 at

page 884, which includes the following quote from a treatise on

11 commercial litigation in federal court: “‘If a claimant is not a proper

owner of copyright rights, then it cannot invoke copyright protection

12 stemming from the exclusive rights belonging to the owner,

including infringement of the copyright.’” (Accord, Smith v.

13 Jackson (9th Cir. 1996) 84 F.3d 1213, 1218 [“To establish a

successful copyright infringement claim, a plaintiff must show that

14 (1) she owns the copyright, and (2) defendant copied protected

elements of the copyrighted work.”].)

15

The fact that one may not successfully sue for copyright

16 infringement because he or she is not the copyright holder does not

mean he or she is not preempted from attempting to sue on a claim

17 that amounts to copyright infringement. As argued by the Youssefi

defendants, it is the nature of the action not the identity of the

18 plaintiff that controls. If one sues another for making unauthorized

copies of a protected work, and the alleged basis for precluding such

19 copying is that the work is protected by copyright, then that action is

subject to copyright preemption. The federal court has exclusive

20 jurisdiction to decide who is entitled to enforce the copyright.

21 Civic Partners Stockton, LLC v. Youssefi, 218 Cal. App. 4th 1005, 1016-17 (2013) (emphasis in

22 original).8

23 Finally, Plaintiffs’ position – taken to the extreme – suggests that, even if it were clear that

24 a claim would be preempted if brought by the copyright holder, that claim could still escape

25 preemption if brought by someone else. That result would seem to make little sense as that would

26 be “a de facto veto over the [copyright holder’s] rights under the Copyright Act.” Maloney v.

27

1 T3Media, Inc., 853 F.3d 1004, 1019 (9th Cir. 2017).

2 3. Use of Name or Likeness in Advertising

3 Plaintiffs contend next that, even if the Court finds in favor of PeopleConnect on the issue

4 of “standing,” they should still ultimately prevail on the issue of copyright preemption because a

5 publicity-right claim is not subject to preemption where a “photograph [is used] as part of an

6 advertising scheme.” Opp’n at 9.

7 On this argument, the critical case is Maloney. The plaintiffs in Maloney were former

8 NCAA student athletes. The NCAA owned or controlled the copyright to certain photographs

9 depicting the plaintiffs playing basketball. The NCAA licensed the photographs to the defendant.

10 The defendant made the photographs available on its website where a person could “obtain for $20

11 to $30 a non-exclusive license permitting them to download a copy of a chosen photograph” for

12 noncommercial use. Id. at 1007. The plaintiffs asserted, inter alia, claims for violation of the

13 right to publicity (both statutory and common law).

14 The Ninth Circuit began its preemption analysis by noting that

15 "[w]e have adopted a two-part test," in accordance with [17 U.S.C.]

section 301, "to determine whether a state law claim is preempted by

16 the Act." First, we decide "whether the 'subject matter' of the state

law claim falls within the subject matter of copyright as described in

17 17 U.S.C. §§ 102 and 103." Second, assuming it does, we determine

"whether the rights asserted under state law are equivalent to the

18 rights contained in 17 U.S.C. § 106, which articulates the exclusive

rights of copyright holders."

19

20 Id. at 1010.

21 The issue in Maloney was whether the subject matter of the state law claims fell within the

22 subject matter of copyright. The court held that it did.

23 Here, the publicity-right claims arise from the licensing of

photographs, which plaintiffs concede are expressive "pictorial"

24 works to which "[a] photographer contributes some original

elements." There is also no doubt that a photograph is "sufficiently

25 permanent" to permit it to be perceived "for more than transitory

duration." The "'subject matter' of the state law claim[s]" – the

26 photographs – therefore appears to fall within the subject matter of

copyright.

27

1 The Ninth Circuit acknowledged the plaintiffs’ contention that there could not be copyright

2 preemption because they were simply challenging the defendant’s exploitation of their likeness or

3 persona – “attributes [that] ‘exist independent of any single photograph.’” Id. Nevertheless, the

4 court was not persuaded. “Contrary to plaintiffs’ argument, [we have not] mint[ed] a categorical

5 rule that publicity-right claims ‘relating to a likeness in a photograph’ are not subject to

6 preemption.” Id. at 1012. Instead, the court explained, “preemption turns on how a copyrighted

7 photograph is used.” Id. at 1013 (emphasis in original).

8 [A] publicity-right claim is not preempted when it targets non-

consensual use of one's name or likeness on merchandise or in

9 advertising. But when a likeness has been captured in a

copyrighted artistic visual work and the work itself is being

10 distributed for personal use, a publicity-right claim interferes with

the exclusive rights of the copyright holder, and is preempted by

11 section 301 of the Copyright Act.

12 Id. at 1011. The court added:

13 The fact that the non-exclusive licenses were sold [by the defendant]

for profit and their price does not alter our analysis. . . . [The

14 defendant’s] decision to license expressive works for a fee does not

change the fact that the publicity-right claims target the display and

15 distribution of copyrighted photographs for personal use. Moreover,

copyright holders are allowed to commercially exploit their

16 copyrights by exercising their exclusive rights under the Copyright

Act.

17

18 Id. at 1016 n.9 (emphasis in original).

19 Under the criteria above, the Ninth Circuit confirmed that the subject matter of the

20 plaintiff’s claims in Maloney fell within the subject matter of copyright.

21 [The plaintiffs] Maloney and Judge do not allege that their names

and likenesses were ever used in connection with the sale of any

22 merchandise. Nor do they contend that their likenesses were ever

used in any advertising. Instead, the copyrighted images themselves

23 were licensed to individuals for "non-commercial art use."

Moreover, the licensees of the Maloney and Judge photos did not

24 obtain "any right or license to use the name or likeness of any

individual . . . in connection with or as an express or implied

25 endorsement of any product or service."

26 Plaintiffs' publicity-right claims and the derivative UCL claim

challenge "control of the artistic work itself." . . . [T]he subject

27 matter of the state law claims therefore falls within the subject

We believe that our holding strikes the right balance by permitting

1 athletes to control the use of their names or likenesses on

merchandise or in advertising, while permitting photographers, the

2 visual content licensing industry, art print services, the media, and

the public, to use these culturally important images for expressive

3 purposes. Plaintiffs' position, by contrast, would give the subject of

every photograph a de facto veto over the artist's rights under the

4 Copyright Act, and destroy the exclusivity of rights that Congress

sought to protect by enacting the Copyright Act.

5

6 Id. at 1018-19 (emphasis added).

7 The question is how Maloney should be applied in the instant case. In their opposition,

8 Plaintiffs argue that there is no preemption because PeopleConnect is using their names and

9 likenesses for advertising purposes – i.e., to advertise reprinted yearbooks and the subscription

10 membership. Part of Plaintiffs’ argument has merit. Specifically, Plaintiffs’ argument has merit

11 to the extent they have alleged that PeopleConnect is using their names and likenesses to advertise

12 the subscription membership. Indeed, PeopleConnect does not appear to have addressed this part

13 of Plaintiffs’ argument, either in its opening brief or in its reply. Cf. Sessa, 2021 U.S. Dist. LEXIS

14 177337, at *44-45 (declining to find copyright preemption because defendant did not simply

15 “display[] or publish[] photographs depicting Plaintiffs”; “[w]here, as here, the platform

16 containing a plaintiff’s photograph sells information about the plaintiff and not limited rights to

17 his image alone, the Copyright Act will not preempt a claim concerning the use of the image”).

18 However, Plaintiffs’ argument is problematic to the extent they contend no preemption

19 where PeopleConnect was using their names and likenesses from the reprinted yearbooks to

20 advertise those yearbooks. Plaintiffs seem to be of the view that, once any advertising is

21 implicated – even advertising of the copyrighted work or a portion thereof – there can no

22 preemption. Although a close call, the Court concludes that case law weighs against Plaintiffs’

23 position that a defendant’s advertising of the copyrighted work itself would take the plaintiff’s §

24 3344 claim outside of copyright preemption. At bottom, a portion of the copyright work itself is

25 being displayed, a fundamental attribute of a copyright.

26 This point is illustrated in Jordan, where the plaintiffs were an adult movie company and

27 the owner of that company (as well as an actor in the company’s movies). The plaintiffs sued the

1 attempt to avoid copyright preemption, the plaintiff argued “for the first time” that his right to

2 publicity was violated because his name and likeness were used on the covers of the counterfeit

3 DVDs. Jordan, 617 F.3d at 1154. But the Ninth Circuit found the argument “misguided” because

4 “the pictures on the covers of the DVDs are ‘still shots’ of the copyrighted video performance.”

5 Id. In so holding, the Ninth Circuit implicitly held that using a portion of the copyrighted work to

6 promote the copyrighted work does not take a publicity-right claim outside of copyright

7 preemption. Cf. 17 U.S.C. § 106 (providing that a copyright owner has the exclusive right to

8 display the copyrighted work publicly “in the case of literary, musical, dramatic, and

9 choreographic works . . . , including the individual images of a motion picture or other audiovisual

10 work”).9

11 The Ninth Circuit indicated as much in Maloney, describing Jordan as follows: “the actor

12 was objecting to the unauthorized distribution and republication of a copyrighted work, not the

13 exploitation of his likeness on an unrelated product [i.e., a product different from the copyrighted

14 work] or in advertising.” Maloney, 853 F.3d at 1016 (emphasis added); see also In re Jackson,

15 972 F.3d 25, 48-49 (2d Cir. 2020) (asking whether “the defendant's use of a work involving the

16 plaintiff's likeness seeks advantage for the defendant on the basis of the plaintiff's identity . . .

17 which argues against preemption – or whether . . . the advantage sought by the defendant flows

18 from the reproduction or dissemination of the work itself (as opposed to the persona of the

19 plaintiff), which argues in favor of preemption”); Dent v. Renaissance Mktg. Corp., No. 14 C

20 02999, 2015 U.S. Dist. LEXIS 70248, at *12 (N.D. Ill. June 1, 2015) (noting that “[c]ourts have

21 held that right-of-publicity claims are not preempted by the Copyright Act when the alleged

22 unauthorized use of the plaintiff's identity extends beyond the copyrighted work[;] [i]n some of

23 these cases, the copyrighted work is used to advertise another product or service”) (emphasis

24

25

9 See also Fleet v. CBS, Inc., 50 Cal. App. 4th 1911, 1914-15, 1920 n.6 (1996) (where CBS

released a film on videotape in which plaintiffs were actors, stating that “[i]t is unclear” whether

26

plaintiffs were claiming “CBS wrongly used stills from the motion picture for advertising or

promotional purposes”; “[i]f so, we note that section 106 specifically gives to the holder of the

27

copyright the right to display publicly ‘individual images of a motion picture’”). Neither the

1 added); cf. Cher v. Forum Int’l, Ltd., 692 F.2d 634, 639 (9th Cir. 1982) (stating that, if a

2 publication is protected by the First Amendment, “[c]onstitutional protection extends to the

3 truthful use of a public figure's name and likeness in advertising which is merely an adjunct of the

4 protected publication and promotes only the protected publication”).

5 As indicated above, there is a two-part test to determine whether a state law claim is

6 preempted by the Copyright Act: (1) does the subject matter of the state law claim fall within the

7 subject matter of copyright as described in 17 U.S.C. §§ 102 and 103, and (2) if so, are the rights

8 asserted under state law equivalent to the rights contained in § 106, which articulates the exclusive

9 rights of copyright holders? See Laws v. Sony Music, 448 F.3d 1134, 1137-38 (9th Cir. 2006).

10 The parties have focused on the first part of the test only. Plaintiffs have not challenged the

11 second part of the test. Even if they had, their position would lack merit based on Laws. See at

12 1143-44 (in discussing the second part of the test, stating that the “mere presence of an additional

13 element (‘commercial use’) in section 3344 is not enough to qualitatively distinguish [plaintiff’s]

14 right of publicity claim from a claim in copyright” because “[t]he extra element must transform

15 the nature of the action” and, “[a]lthough the elements of [the] state law claims may not be

16 identical to the elements in a copyright action, the underlying nature of [the] state law claims is

17 part and parcel of a copyright claim”); accord Jackson, 972 F.3d at 52-53 (noting that

18 “commercial interests have always played an enormous role in copyright law” and therefore,

19 “[e]ven if a commercial purpose is a necessary element of a Connecticut right of publicity claim,

20 this does not necessarily take the right of publicity outside of equivalency with the ‘rights within

21 the general scope of copyright’”). Here, the display of the photos from the yearbook – the

22 copyrighted work – requires no new transformative element to satisfy Plaintiffs’ § 3344, § 17200,

23 and unjust enrichment claims.

24 Accordingly, the Court concludes that Plaintiffs’ § 3344, § 17200, and unjust enrichment

25 claims are preempted by the Copyright Act, but only in part. The § 3344, § 17200, and unjust

26 enrichment claims are preempted to the extent they are based on the use of Plaintiffs’ names and

27 likenesses taken from the yearbooks themselves to advertise those reprinted yearbooks. To the

1 subscription membership, there is no preemption.

2 C. Failure to State a Claim for Relief

3 PeopleConnect argues that, for the remaining claims, dismissal is warranted for failure to

4 state a claim for relief under Federal Rule of Civil Procedure 12(b)(6). Federal Rule of Civil

5 Procedure 8(a)(2) requires a complaint to include “a short and plain statement of the claim

6 showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A complaint that fails to

7 meet this standard may be dismissed pursuant to Rule 12(b)(6). To overcome a Rule 12(b)(6)

8 motion to dismiss after the Supreme Court’s decisions in Ashcroft v. Iqbal, 556 U.S. 662 (2009),

9 and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), a plaintiff’s “factual allegations [in the

10 complaint] ‘must . . . suggest that the claim has at least a plausible chance of success.’” Levitt v.

11 Yelp! Inc., 765 F.3d 1123, 1135 (9th Cir. 2014). The court “accept[s] factual allegations in the

12 complaint as true and construe[s] the pleadings in the light most favorable to the nonmoving

13 party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). But

14 “allegations in a complaint . . . may not simply recite the elements of a cause of action [and] must

15 contain sufficient allegations of underlying facts to give fair notice and to enable the opposing

16 party to defend itself effectively.” Levitt, 765 F.3d at 1135 (internal quotation marks omitted).

17 “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to

18 draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556

19 U.S. at 678. “The plausibility standard is not akin to a probability requirement, but it asks for

20 more than a sheer possibility that a defendant has acted unlawfully.” Id. (internal quotation marks

21 omitted).

22 1. Violation of § 3344

23 Section 3344 is a statutory publicity-right claim. It provides in relevant part as follows:

24 Any person who knowingly uses another’s name, voice, signature,

photograph, or likeness, in any manner, on or in products,

25 merchandise, or goods, or for purposes of advertising or selling, or

soliciting purchases of, products, merchandise, goods or services,

26 without such person’s prior consent, . . . shall be liable for any

damages sustained by the person or persons injured as a result

27 thereof. In addition, in any action brought under this section, the

dollars ($750) or the actual damages suffered by him or her as a

1 result of the unauthorized use, and any profits from the unauthorized

use that are attributable to the use and are not taken into account in

2 computing the actual damages. In establishing such profits, the

injured party or parties are required to present proof only of the

3 gross revenue attributable to such use, and the person who violated

this section is required to prove his or her deductible expenses.

4 Punitive damages may also be awarded to the injured party or

parties. The prevailing party in any action under this section shall

5 also be entitled to attorney’s fees and costs.

6 Cal. Civ. Code § 3344(a).

7 PeopleConnect challenges the § 3344 claim on various grounds: (1) that Plaintiffs have

8 failed to plead an injury; (2) that Plaintiffs have failed to plead unlawful advertising; and (3) that

9 the “public affairs” exception applies.

10 a. Injury

11 Injury is clearly an element of a § 3344 claim. The statute itself refers to liability to

12 “person or persons injured” or to “injured party or parties.” Case law also recognizes injury as an

13 element. See Maloney, 853 F.3d at 1008 n.2 (noting that a § 3344 claim includes as an element

14 “resulting injury”).

15 PeopleConnect argues that, although Plaintiffs have asserted an economic injury, see, e.g.,

16 Compl. ¶ 10 (alleging that PeopleConnect has denied Plaintiffs “the economic value of their

17 likenesses”), there are no facts alleged to support the claim that their names and likenesses have

18 economic value. PeopleConnect acknowledges that statutory damages are a remedy specified in §

19 3344 but maintains that statutory damages are not awarded in the situation where the plaintiff is

20 not able to prove economic value; rather, according to PeopleConnect, statutory damages are

21 awarded only when a plaintiff asserts, instead of an economic injury, an emotional injury.

22 i. Economic Injury

23 PeopleConnect’s first argument is, in essence, that Plaintiffs have pled economic injury in

24 conclusory terms only. The argument is without merit. If a defendant uses a plaintiff’s name

25 and/or likeness to advertise, then it can reasonably be inferred that the name and/or likeness has

26 some economic value, even if small. And PeopleConnect does not dispute that a § 3344 claim can

27 be brought even by noncelebrities. See KNB, 78 Cal. App. 4th at 367 (noting that the

1 injury as would be suffered by a celebrity plaintiff” but § 3344 “is not limited to celebrity

2 plaintiffs”); see also Fraley v. Facebook, Inc., 830 F. Supp. 2d 785, 808 (N.D. Cal. 2011) (Koh, J.)

3 (recognizing that “previous non-celebrity plaintiffs have typically been models, entertainers, or

4 other professionals who have cultivated some commercially exploitable value through their own

5 endeavors,” but “find[ing] nothing requiring that a plaintiff's commercially exploitable value be a

6 result of his own talents or efforts in order to state a claim for damages under § 3344”).

7 Judge Koh’s Fraley decision also supports Plaintiffs. There, the plaintiffs claimed

8 “economic injury because they were not compensated for Facebook’s commercial use of their

9 names and likenesses in targeted advertisements to their Facebook friends.” Id. at 806. The

10 defendant argued that, because the plaintiffs were not celebrities, they had to “demonstrate some

11 preexisting commercial value to their names and likenesses, such as allegations that they

12 ‘previously received remuneration for the use of their name or likeness, or that they have ever

13 sought obtain such remuneration.’” Id. Judge Koh rejected the defendant’s position:

14 [N]othing in the text of the statute or in case law . . . supports

Defendant's interpretation of § 3344 as requiring a plaintiff pleading

15 economic injury to provide proof of preexisting commercial value

and efforts to capitalize on such value in order to survive a motion to

16 dismiss. The plain text of § 3344 provides simply that "[a]ny person

who knowingly uses another's name, voice, signature, photograph,

17 or likeness, in any manner ... for purposes of advertising or selling . .

. without such person's consent . . . shall be liable for any damages

18 sustained by the person or persons injured as a result thereof." Cal.

Civ. Code § 3344. The statutory text makes no mention of

19 preexisting value, and in fact can be read to presume that a person

whose name, photograph, or likeness is used by another for

20 commercial purposes without their consent is "injured as a result

thereof." . . .

21

Nor does the Court find any reason to impose a higher pleading

22 standard on non-celebrities than on celebrities. California courts

have clearly held that "the statutory right of publicity exists for

23 celebrity and non-celebrity plaintiffs alike." KNB Enterprises, 78

Cal. App. 4th at 373 n. 12. As the Ninth Circuit recognized long

24 ago, although “[g]enerally, the greater the fame or notoriety of the

identity appropriated, the greater will be the extent of the economic

25 injury suffered . . . the appropriation of the identity of a relatively

unknown person may result in economic injury or may itself create

26 economic value in what was previously valueless.”

Motschenbacher, 498 F.2d at 825 n. 11 (emphasis added). Thus,

27 courts have long recognized that a person's "name, likeness, or other

1 Id. at 806-07 (emphasis added).

2 The Court acknowledges that there are some authorities to support PeopleConnect’s

3 position. See, e.g., Cohen v. Facebook, Inc., 798 F. Supp. 2d 1090, 1097 (N.D. Cal. 2011)

4 (Seeborg, J.) (stating that “‘[r]esulting injury is the sine qua non of a cause of action for

5 misappropriation of name’” and, “[h]ere, plaintiffs’ sole allegation relating to injury is the

6 conclusory assertion, repeated at least twice in the complaint, that they ‘have suffered injury-in-

7 fact by having the name[s] and likeness[es] misappropriated without their knowledge or

8 consent’”); Ancestry I, 2021 U.S. Dist. LEXIS 37811, at *13 (Beeler, J.) (in discussing standing,

9 holding that plaintiffs did not adequately plead an injury in fact – e.g., plaintiffs “did not show that

10 they had a commercial interest in their images that precluded [the defendant’s] use of them”).

11 Nevertheless, it finds the authorities cited above more persuasive. Economic value may

12 reasonably be inferred from PeopleConnect’s use of the images to advertise, and this is sufficient

13 to defeat a motion under Rule 12(b)(6).

14 ii. Statutory Damages

15 Because Plaintiffs have adequately alleged an economic injury, the Court need not address

16 PeopleConnect’s second argument, which concerns statutory damages. However, because the

17 issue is likely to arise again in the future, the Court addresses it now. PeopleConnect argues

18 statutory damages are available only where a plaintiff claims mental anguish, as opposed to

19 economic injury.

20 Although the argument seems strained on its face, there is authority to support it, including

21 decisions from Judge Seeborg and Judge Koh. See Cohen, 798 F. Supp. 2d at 1097 (Seeborg, J.)

22 (indicating that, to get statutory damages, a plaintiff must show some harm; “‘statutory minimum

23 damages were meant to compensate non-celebrity plaintiffs who suffer . . . mental anguish yet no

24 discernible commercial loss’”) (emphasis omitted); Perkins v. Linkedin Corp., 53 F. Supp. 3d

25 1222, 1242 (N.D. Cal. 2014) (Koh, J.) (recognizing that “[t]he text of section 3344 . . . contains no

26 express requirement that a plaintiff plead mental harm in order to claim the minimum statutory

27 damages figure” but a state appellate court “has inferred such a requirement from section 3344’s

1 statute absent convincing evidence ‘that the California Supreme Court would reject it’”). Judge

2 Seeborg and Judge Koh’s decisions relied primarily on Miller v. Collectors Universe, Inc., 159

3 Cal. App. 4th 988 (2008).

4 In Miller, the state appellate court noted as follows:

5 The statute's legislative history reveals section 3344(a) was intended

to fill “a gap which exist[ed] in the common law tort of invasion of

6 privacy” as applied to noncelebrity plaintiffs whose names lacked

“commercial value on the open market.” (Assemblymember

7 Vasconcellos, letter to Governor Reagan, re Assem. Bill No. 826

(1971 Reg. Sess.) Nov. 10, 1971, p. 1.) Unlike an entertainment or

8 sports star, noncelebrity plaintiffs often could not prove damages

under the common law; therefore, section 3344(a) as originally

9 enacted in 1971 “established a concrete remedy for the little man

with a minimum of $ 300 payment,” “a simple, civil remedy for the

10 injured individual.” (Letter to Gov. Reagan, supra, at pp. 1-2.) A

legislative analysis of the bill quotes the following passage from

11 Fairfield, supra, 138 Cal. App. 2d at pages 86-87: “Unlike [an]

action for defamation, ‘The gist of the cause of action in a privacy

12 case is not injury to the character or reputation, but a direct wrong of

a personal character resulting in injury to the feelings without regard

13 to any effect which the publication may have on the property,

business, pecuniary interest, or the standing of the individual in the

14 community. . . . The right of privacy concerns one's own peace of

mind, while the right of freedom from defamation concerns

15 primarily one's reputation. . . . The injury is mental and subjective.

It impairs the mental peace and comfort of the person and may cause

16 suffering much more acute than that caused by a bodily injury . . .

.’” (Assem. Com. on Judiciary, Analysis of Assem. Bill No. 826

17 (1971 Reg. Sess.) June 14, 1971, p. 1.) Thus, by enacting section

3344(a), the Legislature provided a practical remedy for a

18 noncelebrity plaintiff whose damages are difficult to prove and who

suffers primarily mental harm from the commercial

19 misappropriation of his or her name.

20 Id. at 1002.

21 Plaintiffs’ response to Miller is that, although the case “recognizes statutory damages in §

22 3344 were meant to compensate plaintiffs who suffer mental anguish, nothing in Miller or § 3344

23 suggests statutory damages are available exclusively for that purpose.” Opp’n at 12 (emphasis

24 added). The Court agrees with Plaintiffs. Section 3344 on its face does not require that a plaintiff

25 have suffered mental anguish in order to be awarded statutory damages. Nevertheless, § 3344

26 does require that a plaintiff have suffered injury in order to be awarded damages, including

27 statutory. Thus, as a practical matter, it is not difficult to imagine that a plaintiff seeking statutory

1 that she cannot prove actual damages or at least actual damages in excess of $750. Cf. Perkins, 53

2 F. Supp. 3d at 1246 (stating that “the real injury compensated in Miller was not the reputational

3 harm itself; it was the effect of that reputational harm on Miller’s feelings and mental well-

4 being”).

5 b. Advertising

6 PeopleConnect argues that another deficiency with the § 3344 claim is Plaintiffs’ failure to

7 adequately allege unlawful advertising. According to PeopleConnect, there is unlawful

8 advertising only where (1) the advertisement implies that the plaintiff endorses the product

9 advertised and (2) the name and likeness of the plaintiff is actually part of the advertisement, and

10 not just next to a separate advertisement (which would not imply an endorsement or use to

11 enhance the advertisement).

12 The first argument lacks merit. Nothing in the text of the statute suggests that endorsement

13 is required – only that the name or likeness be used. Case law also weighs against

14 PeopleConnect’s position. See, e.g., Eastwood v. Superior Court, 149 Cal. App. 3d 409, 418-19

15 (1983) (stating that “California law has not imposed any requirement that the unauthorized use or

16 publication of a person's name or picture be suggestive of an indorsement or association with the

17 injured person”; adding that “the appearance of an ‘indorsement’ is not the sine qua non of a claim

18 for commercial appropriation”); see also Fifty-Six Hope Rd. Music, Ltd. v. A.V.E.L.A., Inc., 778

19 F.3d 1059, 1072 (9th Cir. 2015) (noting that “[s]tate publicity right claims protect a plaintiff when

20 the defendant uses the plaintiff's identity for commercial advantage, without permission”).

21 In its reply, PeopleConnect seems to backtrack somewhat. According to PeopleConnect, it

22 is not arguing that “endorsement is required for each type of § 3344 claim”; instead, it is simply

23 contending that endorsement is necessary “where a § 3344 claim contests use of a likeness in

24 advertising or solicitation.” Reply at 9. But all § 3344 claims seem to involve an advertising

25 element (i.e., promotional aspect). See Cal. Civ. Code § 3344 (referring to a “person who

26 knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner, on or in

27 products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases

1 Furthermore, the cases that PeopleConnect has cited in support – i.e., Local TV, LLC v.

2 Superior Court, 3 Cal. App. 5th 1 (2016), and cases cited therein – are distinguishable. These

3 cases involve a different factual scenario: where a news organization is advertising to promote

4 itself. See, e.g., Cher v. Forum Int’l, Ltd., 692 F.2d 634, 639 (9th Cir. 1982) (stating that

5 “[a]dvertising to promote a news medium . . . is not actionable under an appropriation or publicity

6 theory so long as the advertising does not falsely claim that the public figure endorses that news

7 medium”); Montana v. San Jose Mercury News, Inc., 34 Cal. App. 4th 790, 797 (1995) (noting

8 that newspaper sold posters to advertise its quality and content, that the posters contained exact

9 reproductions of pages from the newspaper, that the posters did not contain any other information

10 not included on the newspaper pages themselves, and that the posters did not “state or imply that

11 [football player] Montana endorsed the newspaper”). This line of authority is more relevant to a

12 different argument made by PeopleConnect – i.e., regarding the public affairs exception. See

13 infra.

14 As for PeopleConnect’s second argument, it raises at most a factual dispute – i.e., were

15 Plaintiffs’ names and likenesses sufficiently a part of the advertisements for PeopleConnect’s

16 products, or were they separate from and simply “next to” these advertisements (and thus implied

17 no endorsement or connection thereto). See generally Cross v. Facebook, Inc., 14 Cal. App. 5th

18 190, 211 (2017) (where Facebook page was created by persons critical of plaintiff and used

19 plaintiff’s name and likeness on the page, and where Facebook displayed ads on the page, court

20 rejected plaintiff’s publicity-right claim; “the evidence [plaintiff] submitted . . . demonstrated

21 either that no advertisements appeared alongside the pages at issue, or that the advertisements that

22 did appear adjacent to the content posted by third parties made no use of his name or likeness”).

23 c. Public Affairs Exception

24 Finally, PeopleConnect argues that Plaintiffs do not have a viable § 3344 claim because the

25 statute contains an exception for public affairs. Section 3344(d) provides as follows: “For

26 purposes of this section, a use of a name, voice, signature, photograph or likeness in connection

27 with any news, public affairs, or sports broadcast or account, or any political campaign, shall not

1 The Ninth Circuit has noted that the exception is “based on First Amendment concerns” but is

2 “not coextensive with [the First Amendment].” In re NCAA Student-Athlete Name & Likeness

3 Licensing Litig., 724 F.3d 1268, 1282 (9th Cir. 2013). The exception “is designed to avoid First

4 Amendment questions . . . by providing extra breathing space for the use of a person’s name in

5 connection with matters of public interest.” New Kids on the Block v. News Am. Publ'g, Inc., 971

6 F.2d 302, 310 n.10 (9th Cir. 1992). There is a distinction between “news” and “public affairs” for

7 purposes of the statute.

8 Civil Code Section 3344, subdivision (d) distinguishes between

news and public affairs. We presume that the Legislature intended

9 that the category of public affairs would include things that would

not necessarily be considered news. Otherwise, the appearance of

10 one of those terms in the subsection would be superfluous, a reading

we are not entitled to give to the statute. We also presume that the

11 term “public affairs” was intended to mean something less important

than news. Public affairs must be related to real-life occurrences.

12 As has been established in the cases involving common law privacy

and appropriation, the public is interested in and constitutionally

13 entitled to know about things, people, and events that affect it. For

that reason, we cannot limit the term “public affairs” to topics that

14 might be covered on public television or public radio. To do so

would be to jeopardize society's right to know, because publishers

15 and broadcasters could be sued for use of name and likeness in

documentaries on subjects that do not relate to politics or public

16 policy, and may not even be important, but are of interest.

17 Dora v. Frontline Video, Inc., 15 Cal. App. 4th 536, 545-46 (1993).

18 As an initial matter, the Court takes note this argument is applicable only to the extent

19 PeopleConnect has used Plaintiffs’ names and likenesses to promote reprinted yearbooks – and not

20 the subscription membership. In other words, only reprinted yearbooks potentially have a public

21 affairs connection; the subscription membership clearly does not. Cf. Lukis v. Whitepages Inc.,

22 454 F. Supp. 3d 746, 760-61 (N.D. Ill. 2020) (in addressing a claim brought against Whitepages

23 pursuant to the Illinois Right of Publicity Act, noting that “Whitepages used Lukis's identity to

24 advertise not a background report regarding Lukis, but a monthly subscription service giving the

25 purchaser access to background reports on anybody in Whitepages's database”). And in fact,

26 PeopleConnect does not seem to address the subscription membership in its papers. Because the

27 Court has held that there is copyright preemption for the § 3344 claim based on reprinted

1 d. Summary

2 Plaintiffs have adequately stated a § 3344 claim based on PeopleConnect’s use of their

3 names and likenesses to (allegedly) promote its subscription membership: (1) Plaintiffs have

4 sufficiently alleged an economic injury; (2) they need not allege that the advertising suggested

5 they endorsed the product; (3) it is a question of fact as to whether their names and likenesses were

6 used to advertise the subscription membership; and (4) the public affairs exception has no

7 application to the subscription membership.

8 2. Violation of § 17200

9 In their complaint, Plaintiffs asserted a violation of § 17200 based on unlawful conduct and

10 on unfair conduct. PeopleConnect argues in its motion to dismiss that both theories are not viable.

11 In their opposition, Plaintiffs do not make any argument in response to PeopleConnect’s

12 contention that there is no unfair conduct. See Opp’n at 17. Accordingly, the Court finds the §

13 17200 claim based on unfairness waived and focuses only on the unlawfulness claim.

14 The unlawfulness claim is derivative of the § 3344 claim. However, the unlawfulness

15 claim is not exactly the same as the § 3344 claim because the statutory scheme related to § 17200

16 requires that a plaintiff who brings such a claim must have “suffered an injury in fact and . . . lost

17 money or property as a result of the unfair competition.” Cal. Bus. &. Prof. Code § 17204.

18 Section 17204 is, in essence, a statutory standing requirement. See Kwikset Corp. v. Superior

19 Court, 51 Cal. 4th 313, 320-21 (2011). To satisfy the standing requirement, a plaintiff must “(1)

20 establish a loss or deprivation of money or property sufficient to qualify as injury in fact, i.e.,

21 economic injury, and (2) show that that economic injury was the result of, i.e., caused by, the

22 unfair business practice or false advertising that is the gravamen of the claim.” Id. at 322

23 (emphasis omitted). On the first element, the California Supreme Court has noted that

24 [t]here are innumerable ways in which economic injury from unfair

competition may be shown. A plaintiff may (1) surrender in a

25 transaction more, or acquire in a transaction less, than he or she

otherwise would have; (2) have a present or future property interest

26 diminished; (3) be deprived of money or property to which he or she

has a cognizable claim; or (4) be required to enter into a transaction,

27 costing money or property, that would otherwise have been

“lost money or property,” nor can or need we supply an exhaustive

1 list of the ways in which unfair competition may cause economic

harm. It suffices to say that, in sharp contrast to the state of the law

2 before passage of Proposition 64, a private plaintiff filing suit now

must establish that he or she has personally suffered such harm.

3

4 Id. at 323.

5 In the instant case, PeopleConnect argues that Plaintiffs have failed to allege a loss of

6 money or property because personal information does not qualify as “property.” See, e.g., In re

7 Facebook Privacy Litig., 791 F. Supp. 2d 705, 715 n.10 (N.D. Cal. 2011) (Ware, J.) (noting that

8 plaintiffs did not offer authority to support the argument that personal information “is a form of

9 property” or that “‘unauthorized release of personal information constitutes a loss of property’”).

10 But as Plaintiffs point out, their names and likenesses are intellectual property, and the underlying

11 point of § 17204 is to make sure that a plaintiff has suffered an economic injury for purposes of

12 standing. Here, Plaintiffs have alleged an economic injury; they were not paid – implicitly, by

13 PeopleConnect – for the use of their names and likenesses. Cf. Opp’n at 17 (asserting that “[t]he

14 theft of intellectual property leading to a loss of potential income is a loss of ‘money or

15 property’”). In reply, PeopleConnect argues that Plaintiffs “offer only speculative and conclusory

16 allegations that the use of the yearbook excerpts caused them to lose ‘potential’ income.” Reply at

17 11. But PeopleConnect does not explain how there is speculation if Plaintiffs are simply asserting

18 that PeopleConnect should have paid them for use of their names and likenesses.10 As noted

19 above, a reasonable inference may be made that Plaintiffs’ names and likeness had value in

20 advertising the subscription services.

21 3. Intrusion Upon Seclusion

22 PeopleConnect challenges the claim for intrusion upon seclusion. “[T]he action for

23 intrusion [on seclusion] has two elements: (1) intrusion into a private place, conversation or

24 matter, (2) in a manner highly offensive to a reasonable person.” Shulman v. Grp. W Prods., Inc.,

25 18 Cal. 4th 200, 231 (1998). On the first element, “the plaintiff must show the defendant

26 penetrated some zone of physical or sensory privacy surrounding, or obtained unwanted access to

27

1 data about, the plaintiff. The tort is proven only if the plaintiff had an objectively reasonable

2 expectation of seclusion or solitude in the place, conversation or data source.” Id. at 232. On the

3 second element, “all the circumstances of an intrusion, including the motives or justification of the

4 intruder, are pertinent to the offensiveness element. Motivation or justification becomes

5 particularly important when the intrusion is by a member of the print or broadcast press in the

6 pursuit of news material.” Id. at 236. In the instant case, PeopleConnect argues that Plaintiffs

7 cannot plausibly plead either element.

8 Whether Plaintiffs have sufficiently pled the first element presents a close call.

9 PeopleConnect understandably argues that Plaintiffs could not have a reasonable expectation of

10 privacy because their names and likenesses were used in yearbooks which (1) were clearly

11 intended for public distribution and (2) ultimately had no restrictions on their dissemination. But,

12 as Plaintiffs point out, the California Supreme Court has never “stated that an expectation of

13 privacy, in order to be reasonable for purposes of the intrusion tort, must be of absolute or

14 complete privacy.” Sanders v. Am. Broad. Cos., 20 Cal. 4th 907, 915 (1999) (emphasis in

15 original). “[P]rivacy, for purposes of the intrusion tort, is not a binary, all-or-nothing

16 characteristic. [Rather,] [t]here are degrees and nuances to societal recognition of our expectations

17 of privacy,” and “the fact that the privacy one expects in a given setting is not complete or

18 absolute does not render the expectation unreasonable as a matter of law.” Id. at 916. Thus, e.g.,

19 in In re Facebook, Inc., 402 F. Supp. 3d 767 (N.D. Cal. 2019), Judge Chhabria rejected

20 Facebook’s argument that, “once you make information available to your friends on social media,

21 you completely relinquish any privacy interest in that information.” Id. at 782. In the instant case,

22 publication of an image in a hardbound yearbook with limited distribution is one thing, but

23 publication on the Internet for the world to see may be something else. Thus, this element would

24 appear to raise a question of fact.

25 The Court need not resolve the issue, however, because, on the second element, Plaintiffs

26 have failed to plead sufficient allegations. According to Plaintiffs, there is a question of fact as to

27 whether the intrusion took place in a manner highly offensive to a reasonable person. Plaintiffs

1 information was disclosed “to a worldwide audience comprising millions of users” and at least

2 some of the information was “highly sensitive, including photographs of Plaintiffs as minors and

3 information about where they grew up and attended school.” Opp’n at 18. But Plaintiffs’

4 arguments are not compelling. First, it is entirely speculative that Plaintiffs’ information was

5 actually disclosed to millions. Plaintiffs’ complaint indicates that Plaintiffs’ information would

6 typically be located only when specific searches would be made for them. Second, Plaintiffs’

7 claim that “highly sensitive” information was disclosed is hyperbolic. Plaintiffs suggest that their

8 case is analogous to Facebook but the facts underlying that case are far different. There, the

9 plaintiffs alleged that Facebook “disclosed to tens of thousands of app developers and business

10 partners sensitive information . . . , including their photos, religious preferences, video-watching

11 habits, relationships, and information that could reveal location. It even allegedly disclosed the

12 contents of communications between two people on Facebook's ostensibly private messenger

13 system.” Facebook, 402 F. Supp. 3d at 797. The images and personal information here appear far

14 more limited.

15 Accordingly, the Court dismisses the intrusion-on-seclusion claim. The dismissal is

16 without prejudice but, at this juncture, without leave to amend. If Plaintiffs, through discovery,

17 find additional facts suggesting a good faith basis to support the intrusion-upon-seclusion claim,

18 then they may file a motion for leave to amend.

19 4. Unjust Enrichment

20 Finally, PeopleConnect argues that, under the Ninth Circuit’s decision in Astiana v. Hain

21 Celestial Group, 783 F.3d 753 (9th Cir. 2015), the unjust enrichment claim should be dismissed.

22 In Astiana, the Ninth Circuit stated as follows:

23 [I]n California, there is not a standalone cause of action for "unjust

enrichment," which is synonymous with "restitution." Durell v.

24 Sharp Healthcare, 183 Cal. App. 4th 1350 (2010); Jogani v.

Superior Court, 165 Cal. App. 4th 901 (2008). However, unjust

25 enrichment and restitution are not irrelevant in California law.

Rather, they describe the theory underlying a claim that a defendant

26 has been unjustly conferred a benefit "through mistake, fraud,

coercion, or request." 55 Cal. Jur. 3d Restitution § 2. The return of

27 that benefit is the remedy "typically sought in a quasi-contract cause

return a benefit when the retention of such benefit would unjustly

1 enrich the recipient; a typical cause of action involving such remedy

is 'quasi-contract.'"). When a plaintiff alleges unjust enrichment, a

2 court may "construe the cause of action as a quasi-contract claim

seeking restitution." Rutherford Holdings, LLC v. Plaza Del Rey,

3 223 Cal. App. 4th 221 (2014).

4 Id. at 762. Based on Astiana, PeopleConnect contends that (1) Plaintiffs’ claim for unjust

5 enrichment claim may be considered a quasi-contract claim seeking restitution, but (2) Plaintiffs

6 must then allege that PeopleConnect was unjustly conferred a benefit through mistake, fraud,

7 coercion, or request – which Plaintiffs have not done.

8 PeopleConnect’s interpretation of Astiana, however, may be too rigid. In a post-Astiana

9 case, the Ninth Circuit noted as follows:

10 Some California courts allow a plaintiff to state a cause of action for

unjust enrichment, while others have maintained that California has

11 no such cause of action. Compare Prakashpalan, 223 Cal. App. 4th

at 1132 (allowing plaintiffs to state a cause of action for unjust

12 enrichment) with Durell v. Sharp Healthcare, 183 Cal. App. 4th

1350, 1370 (2010) ("There is no cause of action in California for

13 unjust enrichment.") (internal quotation marks and citation omitted).

While California case law appears unsettled on the availability of

14 such a cause of action, this Circuit has construed the common law to

allow an unjust enrichment cause of action through quasi-contract.

15 See Astiana v. Hain Celestial Grp., Inc., 783 F.3d 753, 762 (9th Cir.

2015) ("When a plaintiff alleges unjust enrichment, a court may

16 'construe the cause of action as a quasi-contract claim seeking

restitution.'") (quoting Rutherford Holdings, LLC v. Plaza Del Rey,

17 223 Cal. App. 4th 221, 231 (2014)). We therefore allow the cause

of action, as we believe it states a claim for relief as an independent

18 cause of action or as a quasi-contract claim for restitution.

19 ESG Capital Partners, Ltd. Partnership v. Stratos, 828 F.3d 1023, 1038-39 (9th Cir. 2016),

20 (emphasis added).

21 The Court shall allow Plaintiffs to proceed with the theory of unjust conferral of a benefit

22 through, in effect, misappropriation. Cf. Hernandez v. Lopez, 180 Cal. App. 4th 932, 938 (2009)

23 (stating that “[t]he doctrine [of unjust enrichment] applies where the plaintiffs, while having no

24 enforceable contract, nonetheless have conferred a benefit on the defendant which the defendant

25 has knowingly accepted under circumstances that make it inequitable for the defendant to retain

26 the benefit without paying for its value”).

27 D. First Amendment and California’s Anti-SLAPP Statute

1 and should be stricken under California’s anti-SLAPP statute – essentially making an argument

2 similar to the public affairs argument discussed above (in conjunction with the § 3344 claim). As

3 discussed above, it is unnecessary for the Court to address these issues because the § 3344, §

4 17200, and unjust enrichment claims are preempted to the extent the claims are based on

5 PeopleConnect’s reprinting of yearbooks and advertising of the yearbooks. PeopleConnect has

6 failed to make a First Amendment and anti-SLAPP argument with respect to any claims based on

7 the use of the images and likenesses in advertising its subscription membership.11

8 IV. MOTION TO STAY DISCOVERY

9 In its motion to stay discovery, PeopleConnect asks the Court to stay discovery pending

10 resolution of its motion to dismiss and strike. This stay motion is moot as (1) this order has now

11 issued and (2) a significant part of Plaintiffs’ case has survived the motion to dismiss and strike.

12 V. CONCLUSION

13 For the foregoing reasons, the Court denies the motion to stay pending appeal, grants in

14 part and denies in part the motion to dismiss and strike, and denies the motion to stay discovery.

15 The § 3344, § 17200, and unjust enrichment claims are preempted in part by the Copyright Act.

16 The intrusion-upon-seclusion claim is dismissed without prejudice but, at this juncture, without

17 leave to amend. Plaintiffs’ case may otherwise proceed. PeopleConnect shall file a response to

18 the complaint within thirty (30) days of the date of this order.

19 This order disposes of Docket Nos. 26, 28, and 49, as well as Docket Nos. 60, 64, and 71.

20

21 IT IS SO ORDERED.

22

23 Dated: November 1, 2021

24 ______________________________________

EDWARD M. CHEN

25 United States District Judge

26

27

11 To the extent Plaintiffs argue that the Court should give collateral estoppel effect to the Knapke