The opinion
1
2
3
4
5 IN THE UNITED STATES DISTRICT COURT
6 FOR THE NORTHERN DISTRICT OF CALIFORNIA
7
8 MARIE HAMMERLING, et al., Case No. 21-cv-09004-CRB
9 Plaintiffs,
ORDER GRANTING MOTION TO
10 v.
DISMISS
11 GOOGLE LLC,
12 Defendant.
13 Defendant Google LLC (“Google”) moves to dismiss Plaintiffs Marie Hammerling
14 and Kay Jackson’s amended complaint. For the second time, Plaintiffs allege that Google
15 secretly used their Android smartphones to collect data regarding their use of third-party
16 apps. Plaintiffs allege that, through the collection of this data, Google “gains a wealth of
17 highly personal information about consumers” in order to “gain an unfair advantage
18 against its competitors.” Am. Compl. (dkt. 51) ¶¶ 3, 5. In its prior order, the Court
19 dismissed all of Plaintiffs’ claims against Google. See Hammerling v. Google LLC, No.
20 21-CV-09004-CRB, 2022 WL 2812188 (N.D. Cal. July 18, 2022). Plaintiffs renew those
21 claims in their amended complaint, alleging that Google breached its contract with its
22 customers and violated California’s Unfair Competition Law, the California Constitution,
23 and California fraud and privacy laws. Am. Compl. ¶¶ 119–222. Google again moves to
24 dismiss. Mot. (dkt. 57). Finding this matter suitable for resolution without oral argument
25 pursuant to Civil Local Rule 7-1(b), because Plaintiffs fail to cure the deficiencies outlined
26 in the Court’s prior order, the Court GRANTS Google’s motion to dismiss.
27 I. BACKGROUND
1 claims: (1) common law intrusion upon seclusion; (2) invasion of privacy under the
2 California Constitution; (3) violation of California Civil Code section 1709; (4) violations
3 of the fraud, unlawful, and unfair prongs of California Civil Code section 17200 (“Unfair
4 Competition Law” or “UCL”); (5) violation of California Civil Code section 1750
5 (“California Consumers Legal Remedies Act” or “CLRA”); (6) breach of contract; (7)
6 breach of implied contract; (8) unjust enrichment; (9) relief under the Declaratory
7 Judgment Act; and (10) violation of California Penal Code section 631 (“California’s
8 Invasion of Privacy Act” or “CIPA”). See Hammerling, 2022 WL 2812188. Despite
9 noting that “many of the problems [outlined in the order would] be difficult to cure,” the
10 Court granted Plaintiffs leave to amend. Id. at *18. Plaintiffs amended their complaint,
11 leaving the vast majority of their allegations untouched; those facts are discussed in the
12 Court’s prior order. See Hammerling, 2022 WL 2812188, at *1–2. In their amended
13 complaint, Plaintiffs allege the following additional facts:
14 First, Plaintiffs allege that data about their use of third-party apps provided “unique
15 insights” into their lives; for example, through Hammerling’s use of the Fidelity
16 Investments and Bank of America apps, Google knew where Hammerling “maintained her
17 financial accounts.” Am. Compl. ¶ 18. Through other third-party apps downloaded to her
18 Android smartphone, Google could deduce that Hammerling had a home security system,
19 drove a Mazda, read the New York Times, and was physically active. Id. Similarly,
20 through Jackson’s use of the Joel Osteen, YouVersion Bible, and Bible Trivia apps,
21 Google knew Jackson’s religious beliefs. Id. ¶ 30.
22 Second, Plaintiffs highlight five pieces of specific information collected from
23 Hammerling’s use of third-party apps: (1) she visited the Wish app on March 10, 2021 and
24 viewed a foot massager, and on March 3, 2021 and viewed “womens slippers size 9”; (3)
25 she visited the Groupon app and viewed deals for “78% off Anti-inflammatory Meal
26 subscriptions” on October 13, 2019 and “100% Extra Virgin Coconut Oil” on May 10,
27 2020; and (3) she visited the Picsart Photo & Video Editor app on March 8, 2021. Id. ¶¶
1 Hammerling’s Google account, which state that: “This activity was saved to your Google
2 Account because the following settings were on: additional Web & App Activity. You can
3 control these settings here.” Id. ¶¶ 19, 21. When Plaintiffs followed the link in that notice,
4 they allege that the Web & App Activity Activity Control only states that Google will
5 “Save[] your activity on Google sites and apps” and Google’s collection of Hammerling’s
6 third-party app data from Groupon, Wish, and Picsart was in violation of this
7 representation. Id. ¶ 23.1
8 Third, Plaintiffs allege that Hammerling read Google’s Privacy Policy and that she
9 “did not understand this policy to mean (and did not agree) that Google would collect
10 sensitive data from” third-party apps she downloaded to her Android smartphone. Id. ¶ 25.
11 Plaintiffs do not allege that Jackson ever read the Policy.
12 Fourth and finally, Plaintiffs allege that this information was “not de-identified or
13 anonymized,” but that their interactions with third-party apps are “directly associated with
14 [their] Google Account[s].” See, e.g., id. ¶¶ 31, 65.
15 II. LEGAL STANDARD
16 Under Federal Rule of Civil Procedure 12(b)(6), the Court may dismiss a complaint
17 for failure to state a claim upon which relief may be granted. Dismissal may be based on
18 either “the lack of a cognizable legal theory or the absence of sufficient facts alleged under
19 a cognizable legal theory.” Godecke v. Kinetic Concepts, Inc., 937 F.3d 1201, 1208 (9th
20 Cir. 2019) (cleaned up). A complaint must plead “sufficient factual matter, accepted as
21 true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662,
22 678 (2009) (cleaned up). A claim is plausible “when the plaintiff pleads factual content
23 that allows the court to draw the reasonable inference that the defendant is liable for the
24 misconduct alleged.” Id. When evaluating a motion to dismiss, the Court “must presume
25 all factual allegations of the complaint to be true and draw all reasonable inferences in
26
27
1 While Plaintiffs do not allege that any specific data of this kind was collected from Jackson, they
1 favor of the nonmoving party.” Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir.
2 1987). “Courts must consider the complaint in its entirety, as well as other sources courts
3 ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular,
4 documents incorporated into the complaint by reference, and matters of which a court may
5 take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322
6 (2007).
7 Claims for fraud must meet the pleading standard of Federal Rule of Civil
8 Procedure 9(b), which requires a party “alleging fraud or mistake [to] state with
9 particularity the circumstances constituting fraud or mistake.” Rule 9(b) “requires . . . an
10 account of the time, place, and specific content of the false representations as well as the
11 identities of the parties to the misrepresentations.” Swartz v. KPMG LLP, 476 F.3d 756,
12 764 (9th Cir. 2007) (cleaned up). “This means that averments of fraud must be
13 accompanied by the who, what, when, where, and how of the misconduct charged.” In re
14 Google Assistant Priv. Litig., 546 F. Supp. 3d 945, 955 (N.D. Cal. 2021) (internal
15 quotation marks omitted).
16 If a court dismisses a complaint for failure to state a claim, it should “freely give
17 leave” to amend “when justice so requires.” Fed. R. Civ. P. 15(a)(2). A court has
18 discretion to deny leave to amend due to “undue delay, bad faith or dilatory motive on the
19 part of the movant, repeated failure to cure deficiencies by amendment previously allowed,
20 undue prejudice to the opposing party by virtue of allowance of the amendment, [and]
21 futility of amendment.” Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 532 (9th Cir.
22 2008).
23 III. DISCUSSION
24 This order first considers Google’s request for incorporation by reference and
25 judicial notice. See Request for Judicial Notice (“RJN”) (dkt. 58). It next considers
26 Google’s argument that Plaintiffs consented to the data collection they allege in their
27 amended complaint. See Mot. at 5–8. It then addresses Google’s motion to dismiss in the
1 privacy claims (common law intrusion upon seclusion, invasion of privacy under the
2 California Constitution, and CIPA); (3) contract claims (breach of contract, implied
3 contract, and unjust enrichment); (4) UCL’s unlawful and unfair prongs; and (5)
4 declaratory judgment claim.
5 A. Incorporation by Reference (Exs. A–E, G–I)
6 Google seeks incorporation by reference of eight documents: two versions of its
7 Privacy Policy, RJN Exs. A & B; and the website and Android versions of its “Activity
8 Controls,” RJN Exs. C–E; G–I. See RJN at 3. Plaintiffs do not oppose this request. See
9 RJN Opp’n (dkt. 59).
10 The incorporation-by-reference doctrine “treats certain documents as though they
11 are part of the complaint itself.” Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 1002
12 (9th Cir. 2018). Documents are subject to incorporation by reference if a plaintiff refers to
13 them “extensively” or they form the basis of the complaint. Id. Courts may properly
14 assume the truth of documents incorporated by reference. Id. at 1003. But “it is improper
15 to assume the truth of an incorporated document if such assumptions only serve to dispute
16 facts stated in a well-pleaded complaint.” Id.
17 The Court’s prior order on Google’s first motion to dismiss found that both versions
18 of Google’s Privacy Policy were incorporated by reference. They remain so for the same
19 reasons, based on Plaintiffs’ many references to them in their amended complaint. See
20 Hammerling, 2022 WL 2812188, at *3; see also, e.g., Am. Compl. ¶¶ 24, 33, 62–63, 73–
21 74.
22 The amended complaint, additionally, both quotes directly and references Google’s
23 “Activity Controls,” or webpages through which Plaintiffs were able to choose what types
24 of their data Google may retain. RJN Exs. C–E; G–I. Plaintiffs provide two notices from
25 Hammerling’s Google account, both of which state that: “This activity was saved to your
26 Google Account because the following settings were on: additional Web & App Activity.
27 You can control these settings here.” Am. Compl. ¶¶ 19 fig. 1, 21 fig. 2. Plaintiffs then
1 linked page. Id. ¶¶ 23, 32, 183. Google provides those linked pages (one before the Web
2 & App Activity setting is enabled, the other after) as Exhibits C & D in its request for
3 judicial notice. See Kanig Decl. (dkt. 58-1) at 1; RJN Ex. C; Ex. D (“WAA Disclosure”).
4 Further, Google provides an additional disclosure that pops up when a user chooses to
5 enable the “[i]nclude Chrome history and activity from sites, apps, and devices that use
6 Google services” option on the Web & App Activity (“WAA”) page, which Google calls
7 the “Additional Web & App Activity” (“AWAA”) disclosure. See Kanig Decl. at 1; RJN
8 Ex. E (“AWAA Disclosure”). Exhibits G, H and I are those same pages, as they appear on
9 Android smartphones. Kanig Decl. at 2; RJN Exs. G–I. Plaintiffs do not dispute the
10 authenticity of these webpages, nor that they are provided when Android users alter their
11 WAA settings, as Google explains in its declaration. See RJN Opp’n.
12 The Court finds that each of these webpages are properly incorporated by reference.
13 The Amended Complaint both references and quotes directly (though selectively) from the
14 WAA Disclosure, which, in turn, when a particular setting is selected, allows the AWAA
15 Disclosure to pop up. See Am. Compl. ¶¶ 23, 32; WAA Disclosure; AWAA Disclosure.
16 These documents are thus part of a singular whole and must be considered together,
17 particularly where Plaintiffs complain that they were not adequately informed about the
18 types of data Google collects from their Android smartphones. Khoja, 899 F.3d at 1002;
19 Al-Ahmed v. Twitter, Inc., No. 21-CV-08017-EMC, 2022 WL 1605673, at *4 (N.D. Cal.
20 May 20, 2022); see also, e.g., Am. Compl. ¶¶ 19, 21, 23, 32, 34. Thus, the Court
21 incorporates by reference Exhibits A–E and G–I to Google’s request for judicial notice.
22 B. Judicial Notice (Exs. F, J, K)
23 Google additionally seeks judicial notice of three documents: a page from its Help
24 Center titled “Find & control your Web & App Activity”, see RJN Ex. F; a Privacy Policy
25 dated September 20, 2021 from the third-party app Wish, see RJN Ex. J; and an undated
26 disclosure from the Google Play Store regarding data collection by the third-party app
27 Groupon, see RJN Ex. K. Plaintiffs do not oppose the request as to the Help Center
1 disclosure. RJN Opp’n at 3.
2 Courts may take judicial notice of a fact that is “not subject to reasonable dispute,”
3 i.e., that is “generally known” or “can be accurately and readily determined from sources
4 whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). “Publicly
5 accessible websites and news articles are among the proper subjects of judicial notice.”
6 Diaz v. Intuit, Inc., 15-cv-1778, 2018 WL 2215790, at *3 (N.D. Cal. May 15, 2018).
7 Courts may not, however, “take judicial notice of disputed facts contained in [] public
8 records.” Khoja, 899 F.3d at 999 (citation omitted).
9 Because Plaintiffs do not dispute the accuracy of the contents of the Help Center
10 webpage, and because webpages like this one are regularly the subject of judicial notice in
11 this circuit, the Court takes judicial notice of Exhibit F. See, e.g., Brown v. Google LLC,
12 No. 20-CV-03664-LHK, 2021 WL 6064009, at *6–7 (N.D. Cal. Dec. 22, 2021).
13 Plaintiffs do, however, argue that it is improper to take judicial notice of the Wish
14 Privacy Policy and the Groupon disclosure, because they “have nothing to do with
15 Plaintiffs’ allegations, which concern only Google’s collection and interception of data
16 from non-Google apps through Android OS,” and that “Google takes no steps to explain
17 how or if Plaintiffs would have seen these documents in the course of purchasing and
18 using their Android devices.” RJN Opp’n at 1 (emphasis omitted).
19 The Court disagrees with Plaintiffs’ contention that such disclosures “have nothing
20 to do with [their] allegations,” but declines to take judicial notice of them nonetheless.
21 While it may be true that these are the most recent privacy policy and data disclosure for
22 Wish and Groupon respectively, they may not contain the same disclosures that
23 Hammerling may have read when she downloaded the apps or used them from 2019 to
24 2021.2 They thus contain no facts that can be “judicially noticeable for [their] truth.”
25 Khoja, 899 F.3d at 999. Whether and to what extent Wish and Groupon alerted
26 Hammerling that her data might be shared, and whether or to what extent they proceeded
27
1 to share her data with third parties (perhaps Google), are questions of fact unresolved by
2 these disclosures and inappropriate to resolve on a motion to dismiss.
3 Thus, the Court takes judicial notice of Exhibit F but declines Google’s request to
4 take judicial notice of Exhibits J and K.
5 C. Consent
6 Google argues that, by including five allegations of data collection from
7 Hammerling’s Google account in the amended complaint, Hammerling admits to
8 consenting to the data collection practices at issue. Because Google fails to satisfy the
9 high bar for consent on a motion to dismiss, this argument fails.
10 In their amended complaint, Plaintiffs allege that Google tracked Hammerling’s
11 interaction with three third-party apps, including what product or service she viewed, the
12 date and time at which she viewed it, and the Google product she used at the time. See
13 Am. Compl. ¶¶ 19–21. Plaintiffs provide a notice from Google about the source of two
14 pieces of that data. Under a “Why is this here?” heading, the notice states: “This activity
15 was saved to your Google Account because the following settings were on: additional Web
16 & App Activity. You can control these settings here.” Id. ¶¶ 19 fig. 1, 21 fig. 2. Plaintiffs
17 claim that when they follow the link in those notices, Google states that if Web & App
18 Activity is enabled on that page, it will only “Save[] your activity on Google sites and
19 apps.” Id. ¶ 23. However, Google contends that Plaintiffs selectively quote from the Web
20 & App Activity page. See, e.g., Mot. at 6. Google provides the full Web & App Activity
21 disclosure, which also provides an additional choice for users to select: “Include Chrome
22 history and activity from the sites, apps, and devices that use Google services.” WAA
23 Disclosure; see also Ex. H (same). When users choose this setting, an additional
24 disclosure pops up, clarifying the “activity from sites, apps, and devices that use Google
25 services” that users may allow Google to collect, including: “app activity, including data
26 that apps share with Google”; and “Android usage and diagnostics, like battery level, how
27 often you use your device and apps, and system errors.” AWAA Disclosure; see also Ex. I
1 complaint indicates that the “additional Web & App Activity” setting was enabled, not just
2 the “Web & App Activity” setting, then Hammerling must have “necessarily reviewed” the
3 AWAA Disclosure in order to enable that setting. Reply (dkt. 61) at 3. It would follow
4 that Hammerling consented to disclosure of her activity on third party apps “that use
5 Google services,” because the AWAA Disclosure tells her so. Google argues that this
6 consent requires dismissal of Plaintiffs’ fraud, privacy, and contract claims. Mot. at 7.
7 This argument fails because Google’s provision of its current AWAA Disclosure
8 does not support the conclusion that Hammerling “necessarily reviewed” the same AWAA
9 Disclosure, and thus consented to it. Google provides only screenshots of the WAA and
10 AWAA Disclosures taken in September 2022. See Kanig Decl. at 1. Assuming that
11 Google’s Activity Controls were incorporated into its Privacy Policy, see id., there is no
12 indication that the disclosures in Google’s Activity Controls were the same when
13 Hammerling first enabled the setting, nor when her data was collected from third-party
14 apps from 2019 to 2021. See Am. Compl. ¶¶ 15, 19–21. For their part, while Plaintiffs
15 may admit that Hammerling enabled the setting at some point, and do admit that she
16 “necessarily saw” the WAA Disclosure,3 Plaintiffs do not admit that Hammerling saw the
17 AWAA Disclosure prior to Google’s request for judicial notice. See id. ¶ 23; see also
18 Opp’n at 16. Thus, it is possible that Hammerling enabled AWAA and did not see the
19 same, or any, disclosure regarding the additional data she was consenting to be collected
20 by Google.4
21 Google relies heavily on In re Facebook, Inc., Consumer Privacy User Profile
22 Litigation to argue that consent can be found on these facts, but that case is inapposite. In
23
24
3 It may be argued that because Plaintiffs admit that Hammerling “necessarily saw” the statement
25 at the top of the WAA Disclosure (“Saves your activity on Google sites and apps”) that she
necessarily saw (and chose) the additional setting (“Include . . . activity from sites, apps, and
26 devices that use Google services”). But because the Court cannot conclude that the WAA
Disclosure Hammerling saw was the same as the one provided by Google in its request for judicial
27 notice, consent cannot be found on this basis.
4 Indeed, it is not implausible that AWAA is, or at one point was, a default setting for Android
1 Facebook Consumer Privacy, Judge Chhabria found that language in Facebook’s
2 Statement of Rights and Responsibilities and its Data Use Policy disclosed to users that
3 others may share their information with app developers, and that users must take specific
4 steps to prevent this. 402 F. Supp. 3d 767, 792 (N.D. Cal. 2019). It followed that users
5 that did not adjust their settings accordingly were “deemed to have agreed to the language”
6 in Facebook’s policies. Id. at 792–93. Google argues that it flows from Facebook
7 Consumer Privacy that, by enabling “additional App & Web Activity,” consent must be
8 found here and Plaintiffs’ fraud, privacy, and contract claims must be dismissed on this
9 basis. Mot. at 7–8.
10 But a key aspect of Facebook Consumer Privacy was that Judge Chhabria only
11 found consent where the language in question was present at the time users signed up for
12 Facebook accounts in 2009. 402 F. Supp. 3d at 793–94. Whether users who signed up
13 before that language was added consented to it could not be resolved on a motion to
14 dismiss. Id. So too here: Google has not shown that the current AWAA Disclosure was
15 presented to users when Hammerling enabled the setting, and thus consent cannot be found
16 at this early stage as to her.5 What disclosure Hammerling was shown, and whether that
17 language is coextensive with the current AWAA Disclosure, would be questions of fact for
18 a later stage in the case. Nevertheless, Plaintiffs’ claims do not survive this motion to
19 dismiss because their amendments fail to cure the defects found in the Court’s prior order.
20 D. Fraud Claims (Claims 3, 4, and 5)
21 In its prior order, the Court dismissed Plaintiffs’ fraud claims because (1) Plaintiffs
22 failed to allege that they actually relied on any alleged misrepresentation; and (2) Google
23 lacked a duty to disclose any alleged omission. The Court dismissed the CLRA claim for
24 the additional reason that Plaintiffs failed to allege a transaction under the CLRA.
25 Because Plaintiffs fail to cure these deficiencies in the amended complaint,
26
27
5 Because it is not clear from the amended complaint whether Jackson enabled the AWA or
1 Google’s motion to dismiss is again granted as to the CLRA, UCL fraud prong, and
2 Section 1709 claims.
3 1. Misrepresentation
4 As the Court held in its prior order, to plausibly allege a CLRA, Section 1709, or
5 UCL fraud claim on a misrepresentation theory, “a plaintiff must allege that they relied on
6 a misrepresentation and suffered injury as a result.” Hammerling, 2022 WL 2812188, at
7 *6 (citing Moore v. Apple, Inc., 73 F. Supp. 3d 1191, 1200 (N.D. Cal. 2014)). In their
8 initial complaint, Plaintiffs merely alleged that they “relied upon” the alleged
9 misrepresentations “when setting up their Android Smartphones.” Compl. (dkt. 1) ¶ 52.
10 In their amended complaint, Plaintiffs identify additional alleged misrepresentations, see,
11 e.g., Am. Compl. ¶¶ 23–24, and allege that one plaintiff, Hammerling, “read Google’s
12 Privacy Policy,” and that she “did not understand this policy to mean (and did not agree)
13 that Google would collect sensitive data from non-Google apps.” Id. ¶ 25.6 This statement
14 again fails to plead reliance. The additional allegation that Hammerling read the Privacy
15 Policy does not state when she read the policy, nor whether she purchased her Android
16 smartphone in reliance on the alleged misrepresentations in the policy. See Hammerling,
17 2022 WL 2812188, at *6 (citing Davidson v. Apple, Inc., 16-cv-4942, 2017 WL 976048,
18 at *8 (N.D. Cal. Mar. 14, 2017), and Donohue v. Apple, Inc., 871 F. Supp. 2d 913, 925
19 (N.D. Cal. 2012)).
20 Plaintiffs make three arguments against dismissal based on reliance, all of which are
21 unpersuasive.
22 First, Plaintiffs argue that they need not plead actual reliance based on the Privacy
23 Policy because “there is no indication that Google made a different statement or changed
24 its policy before Plaintiff purchased her device to create a different result.” Opp’n at 14.
25 Whether or not this is true, it is beside the point, which is whether Plaintiffs relied on
26 particular alleged misrepresentations to purchase the phones, to their detriment.
27
1 Hammerling, 2022 WL 2812188, at *6. If Hammerling read the Privacy Policy after she
2 purchased the phone, even if it was unchanged from the policy that existed prior to her
3 purchase, she did not purchase the phone in reliance upon the representations in the policy.
4 Because Plaintiffs do not allege that Hammerling read the policy prior to her purchase, this
5 argument fails.
6 Second, Plaintiffs argue that their claims in the amended complaint arise not only
7 from the Privacy Policy but also from “the misrepresentations Google made on its settings
8 pages.” Opp’n at 15. Because Plaintiffs argue that they “could not have discovered” the
9 misrepresentations in these pages “until after purchasing their devices,” they need not
10 plead reliance prior to purchase. Id. Instead, they relied on these statements “by
11 continuing to use a device (and supply Google with data) when they otherwise would not
12 have if Google had disclosed the truth about its practices.” Id. But Plaintiffs cite only to
13 paragraphs in their amended complaint that reference only the fact that, had they known
14 “Google would collect [their] sensitive personal data without consent, [they] would not
15 have purchased, or would have paid significantly less for, [their] Android Smartphones.”
16 Am. Compl. ¶¶ 26, 35. They do not plead reliance based on continued use of their phones
17 after viewing the settings pages,7 and thus this theory too fails.
18 Third and finally, Plaintiffs argue that, with respect to their Section 1709 and UCL
19 claims, they allege that “Google’s collection of highly sensitive individualized data is a
20 cognizable harm,” and thus plead an injury of data collection separate and apart from their
21 purchase of the Android Smartphones. Opp’n at 15. Maybe so, but Plaintiffs do not plead
22 that they relied on a misrepresentation and suffered this injury as a result. See
23 Hammerling, 2022 WL 2812188, at *6. Rather, they only state that Google’s data
24 collection “necessarily occurs after Google misrepresented what data it would collect.”
25 Opp’n at 15. Because this is not an allegation of reliance on the misrepresentation, but
26 merely alleging that the alleged misrepresentation was made before the injury, this
27
1 argument also fails.
2 Therefore, to the extent Plaintiffs’ fraud claims are based on a misrepresentation
3 theory, they do not survive Google’s motion to dismiss.
4 2. Omission
5 In its prior order, the Court dismissed Plaintiffs’ fraud claims based on an omission
6 theory because in order to plead that Google had a duty to disclose the omitted fact,
7 Plaintiffs must allege that omitted information was “central to the product’s function.”
8 Hammerling, 2022 WL 2812188, at *8–9 (quoting Hodsdon v. Mars, Inc., 891 F.3d 857,
9 863 (9th Cir. 2018)). The Court concluded that because Google’s collection of data from
10 non-Google apps does not render the Plaintiffs’ smartphones “incapable of use” and does
11 not prevent their phones from “performing a critical or integral function,” any fraud claims
12 based on an omission theory must be dismissed. Id. at *9 (quoting Knowles v. ARRIS
13 Int’l PLC, 847 F. App’x 512, 513–14 (9th Cir. 2021), and Ahern v. Apple Inc., 411 F.
14 Supp. 3d 541, 567 (N.D. Cal. 2019)). Plaintiffs’ argument on this point—that “Google’s
15 secret collection of non-Google app data from Android device users impacts its ‘central
16 function’ because privacy is a key—if not the only—consideration in selecting a mobile
17 device”—is nearly identical to the one the Court dismissed in its prior order, and the Court
18 is not persuaded a second time. Opp’n at 17; Hammerling, 2022 WL 2812188, at *8
19 (finding that the argument that “[u]sing apps is at the heart of the smartphone experience”
20 does not prevent a smartphone from “performing a critical or integral function” or
21 otherwise render it “incapable of use”).8
22 In addition, to the extent that Plaintiffs allege a partial omission theory by alleging
23 that Hammerling reviewed the Privacy Policy, this new allegation still cannot survive a
24 motion to dismiss because it still does not meet the 9(b) standard. In its prior order, the
25
26
8 Plaintiffs’ reference to Flores-Mendez v. Zoosk, Inc., 20-cv-4929, 2022 WL 357500, at *4 (N.D.
27 Cal. Feb. 7, 2022), does not convince the Court otherwise. That case was about a data breach of a
dating website, where plaintiffs submitted “reputationally sensitive” “data about [their] romantic
1 Court found that the Plaintiffs cannot rely on this theory because “Plaintiffs do not allege
2 that they ever read the Policy before (or after) purchasing their Android smartphones,
3 without which they could not have relied on this ‘partial omission.’” Hammerling, 2022
4 WL 2812188, at *7 n.7 (citing Anderson v. Apple, Inc., 500 F. Supp. 3d 993, 1018 (N.D.
5 Cal. 2020)). Plaintiffs argue that because the amended complaint alleges that Hammerling
6 read the Privacy Policy at an unspecified time, and because she “did not understand this
7 policy to mean (and did not agree) that Google would collect sensitive data from non-
8 Google apps,” that they have plausibly pleaded a partial omission. Opp’n at 16; Am.
9 Compl. ¶ 25. But, as discussed above, the amended complaint does not specify when
10 Hammerling reviewed the Privacy Policy—if it was prior to purchasing her smartphone, or
11 after her purchase and during its use. Further, while Plaintiffs’ opposition states that they
12 “necessarily saw” the alleged partial omissions in the WAA Disclosure, Plaintiffs do not
13 allege in their amended complaint that they ever actually encountered that disclosure prior
14 to reviewing Hammerling’s data notices. See Am. Compl. ¶¶ 19–23, 32. While Plaintiffs
15 are correct that alleging that one plaintiff has at least encountered the Privacy Policy is
16 more than the Anderson court had, the amended complaint still fails to allege Plaintiffs’
17 encounters with these alleged partial omissions with 9(b) particularity. See Anderson, 500
18 F. Supp. 3d at 1019.9
19 3. CLRA
20 In its prior order, the Court held that to state a qualifying transaction under the
21 CLRA, a plaintiff must plead that the defendant is either “(1) the manufacturer of the
22 product or (2) a party that received some portion of the product’s sale.” Hammerling, 2022
23 WL 2812188, at *10. Because Plaintiffs pleaded neither, the Court dismissed the CLRA
24 claim on this additional ground. Id. In their amended complaint, Plaintiffs attempt to cure
25 this defect by alleging that Google earns “substantial profit through Android Smartphones
26
27
9 Because the Court dismisses Plaintiffs’ fraud claims based on an omission theory for these
1 that incorporate Android OS.” Am. Compl. ¶ 45. But while Plaintiffs may have alleged
2 that Google may profit off of a user’s ownership and continued use of a device running on
3 Android OS, they fail to allege that Google made any money directly off of the sale of
4 Hammerling and Jackson’s devices (nor any devices manufactured by third parties). See
5 Decarlo v. Costco Wholesale Corp., 14-cv-202, 2020 WL 1332539, at *9 (S.D. Cal. Mar.
6 23, 2020). Plaintiffs thus still fail to plead a qualifying transaction under the CLRA.
7 Because Plaintiffs’ fraud claims fail for the foregoing reasons, the Court grants
8 Google’s motion to dismiss the CLRA, UCL fraud prong, and Section 1709 claims.
9 E. Privacy Claims (Claims 1, 2, and 10)
10 In its prior order, the Court dismissed Plaintiffs’ privacy claims because (1)
11 Plaintiffs failed to plead that the intrusion was “highly offensive”; and (2) as to the CIPA
12 claim, they failed to plead that Google learned the “contents” of their interactions with
13 third-party apps.
14 Because Plaintiffs again fail to plausibly plead these claims in their amended
15 complaint, Google’s motion to dismiss is granted as to the common-law privacy claim, the
16 constitutional privacy claim, and the CIPA claim.
17 1. Privacy Under the Common Law and State Constitution
18 In its prior order, the Court found that while Plaintiffs had alleged a reasonable
19 expectation of privacy in the frequency and duration of their use of third-party apps, they
20 had not plausibly alleged that that intrusion was “highly offensive.” Hammerling, 2022
21 WL 2812188, at *10–11. In their amended complaint, Plaintiffs attempt to cure this defect
22 by pointing out the third-party apps that they used and what those apps may have told
23 Google about them, as well as five allegations of specific data collection of Hammerling’s
24 activity on three third-party apps. See Am. Compl. ¶¶ 18–21, 30. Because these
25 allegations still fail to amount to a “highly offensive” intrusion,10 Plaintiffs’ privacy
26
27
10 Because the Court does not find that Plaintiffs consented to this data collection, see supra
Section III.C, it does not accept Google’s argument that Plaintiffs have failed to plead a reasonable
1 claims under the common law and state constitution must again be dismissed.
2 To determine whether an intrusion was highly offensive, courts consider factors
3 such as “the likelihood of serious harm to the victim, the degree and setting of the
4 intrusion, the intruder’s motives and objectives, and whether countervailing interests or
5 social norms render the intrusion inoffensive.” In re Facebook, Inc. Internet Tracking
6 Litig., 956 F.3d 589, 606 (9th Cir. 2020). The Court found in its prior order that Plaintiffs
7 had not alleged “that the data allegedly collected by Google is sufficiently specific or
8 personal, and its collection sufficiently harmful, to be highly offensive.” Hammerling,
9 2022 WL 2812188, at *12. Taking Plaintiffs’ new allegations one by one, they still do not
10 reach this bar.
11 First, Plaintiffs allege the personal information that Google may have gleaned from
12 their use of their third-party apps: Hammerling’s bank and where she kept her investments,
13 through her use of the Fidelity Investments and Bank of America apps; what car she drove,
14 through her use of the MyMazda app; where she reads her news and her interest in
15 cooking, through her use of the New York Times and NYT Cooking apps; and that she
16 was physically active and interested in straightening her teeth, through use of related apps.
17 Am. Compl. ¶ 18. Plaintiffs allege that information about Jackson’s religious beliefs could
18 be gleaned from her use of various religious apps, and her interest in privacy through her
19 use of a privacy browser. Id. ¶ 30.
20 These allegations still do not render any tracking of the use of these apps highly
21 offensive. Fundamentally, Plaintiffs do not allege that Google could glean any personal
22 information from these apps’ frequency of use or duration; Plaintiffs simply allege that
23 Google could learn personal information about them through their download of third-party
24 apps alone. See Opp’n at 7. But Google already discloses that it does collect information
25 when a user installs an app from the Google Play Store onto their device. RJN Ex. A at 3
26 (“We collect this information when a Google service on your device contacts our servers –
27
1 for example, when you install an app from the Play Store . . . .”); id. (“This information
2 includes things like your device type, carrier name, crash reports, and which apps you’ve
3 installed.”). Plaintiffs do not allege that any tracking of the frequency or duration of use of
4 these apps would allow Google to gain any other particular knowledge about them that was
5 not already disclosed from the download of the apps themselves. See, e.g., Hammerling,
6 2022 WL 2812188, at *13. As a result, such an intrusion is not highly offensive.
7 Second, Plaintiffs allege that Google has collected more granular information from
8 Hammerling’s interaction with three third-party apps.11 Specifically, Plaintiffs allege
9 notices from Google that Hammerling (1) visited the Wish app on March 10, 2021 and
10 viewed a foot massager, and on March 3, 2021 and viewed “womens slippers size 9”; (3)
11 visited the Groupon app and viewed deals for “78% off Anti-inflammatory Meal
12 subscriptions” on October 13, 2019 and “100% Extra Virgin Coconut Oil” on May 10,
13 2020; and (3) visited the Picsart Photo & Video Editor app on March 8, 2021. Am. Compl.
14 ¶¶ 19–21. While more specific than the first alleged data collection, this data still is not
15 sufficiently personal, nor its collection sufficiently harmful, to be highly offensive.
16 First, it is mentioned in the Privacy Policy and WAA Disclosure that Google can,
17 and does, collect data from non-Google apps that use Google services. See, e.g., RJN Ex.
18 A at 4 (“The activity information we collect may include . . . [a]ctivity on third-party sites
19 and apps that use our services.”); WAA Disclosure (“Include Chrome history and activity
20 from sites, apps, and devices that use Google services”). While the Court cannot conclude
21 that Plaintiffs have affirmatively consented to the collection of this data, see supra Section
22 III.C, this data collection is also not “blatantly deceitful,” as in other cases where highly
23 offensive intrusions have been found. See Hammerling, 2022 WL 2812188, at *12 (citing
24 Facebook Tracking, 956 F.3d at 603). Plaintiffs have not alleged, for example, that they
25 understood that Wish, Groupon, and Picsart did not use Google services, or that they had
26
27
11 Plaintiffs do not allege any specific interaction with third-party apps that was linked to
1 disabled Google’s ability to collect such data from third-party apps that use Google
2 services prior to these specific instances of data collection. And as Plaintiffs themselves
3 point out, they have access to this data collection via their Google accounts, where they
4 can “control the[] settings” that allow the collection to occur. Am. Compl. ¶¶ 19, 21. This
5 data collection was not “surreptitious” and thus less likely to be found to be highly
6 offensive. Facebook Tracking, 956 F.3d at 606 & n.8.
7 Second, and most fundamentally, the data collected from these particular intrusions
8 is not sufficiently egregious to be characterized as highly offensive. Hammerling’s
9 searches of a foot massager, slippers, meal subscriptions, coconut oil, and use of a photo
10 editor are better characterized as data collection of “routine commercial behavior,” not
11 considered a highly offensive intrusion of privacy in this district. See Low v. LinkedIn
12 Corp., 900 F. Supp. 2d 1010, 1025 (N.D. Cal. 2012); see also Hammerling, 2022 WL
13 2812188, at *12 (citing In re Google Inc. Priv. Pol’y Litig., 58 F. Supp. 3d 968, 988 (N.D.
14 Cal. 2014), and In re iPhone Application Litig., 844 F. Supp. 2d 1040, 1063 (N.D. Cal.
15 2012)). Though Plaintiffs have pleaded that Google has collected these five pieces of de-
16 anonymized disparate information,12 they do not plausibly allege that Google has recorded
17 “each and every intimate interaction taken on the users’ devices, allowing Google to
18
19
20
12 In its prior order, the Court found that, even if the data described by Plaintiffs were de-
anonymized, it still does not amount to a highly offensive intrusion. See Hammerling, 2022 WL
21 2812188, at *12 n.11. The Court is not persuaded to alter this finding based on the cases provided
by Plaintiffs. In Revitch v. New Moosejaw, LLC, 18-cv-6827, 2019 WL 5485330 (N.D. Cal. Oct.
22 23, 2019), Judge Chhabria found that a jury could conclude that an intrusion was highly offensive
in part because Revitch alleged that defendants “scanned Revitch’s computer for files that
23 revealed his identity and browsing habits.” Id. at *3. No similarly invasive intrusion is alleged
here. In McDonald v. Kiloo ApS, 385 F. Supp. 3d 1022 (N.D. Cal. 2019), plaintiffs alleged that
24 gaming apps targeted toward minor children collected user data and disseminated it to third parties
in order to “track, profile, and target children with targeted advertising,” and the Court could not
25 find that such an intrusion was not highly offensive on a motion to dismiss. Id. at 1029–30, 1035–
36. This case concerns neither alleged data collection from and targeting of minor children, nor
26 dissemination to third parties. Finally, in Rodriguez v. Google LLC, 20-cv-4688, 2021 WL
2026726 (N.D. Cal. May 21, 2021), plaintiffs did not allege that they enabled WAA. Id. at *8. In
27 this case, while consent cannot be found at this stage, Plaintiffs have at least alleged that WAA
was enabled, and thus it cannot be said that Google “set an expectation” that such data would not
1 develop comprehensive profiles on its users.” Opp’n at 9.13 Thus, Google’s motion to
2 dismiss as to Plaintiffs’ common-law and constitutional privacy claims is granted.
3 2. CIPA Claim
4 In its prior order, the Court dismissed Plaintiffs’ CIPA claim because they failed to
5 plausibly allege that, by tracking the frequency and duration of Plaintiffs’ use of third-
6 party apps, Google learned the “contents” of Plaintiffs’ communications with those apps,
7 as required under § 631. Hammerling, 2022 WL 2812188, at *14–15; see also Cal. Pen.
8 Code § 631. In response to their amended complaint, Google argues that Plaintiffs still fail
9 to make out a CIPA claim, because: (1) Plaintiffs’ new allegations are still not the
10 “contents” of a communication within the meaning of § 631; (2) Plaintiffs do not plausibly
11 allege that Google intercepted their data while “in transit”; and (3) Plaintiffs do not allege
12 that the interception occurred within the state of California.14
13 a. Contents
14 While the Court held in its prior order that the information alleged—when and for
15 how long Plaintiffs used third-party apps on their Android devices—was not the “contents”
16 of Plaintiffs’ communications under the CIPA, Hammerling, 2022 WL 2812188, at *14–
17 15, the amended complaint cures this defect. Plaintiffs now allege that Google not only
18 collected data regarding “when and how often they interact” with third party apps, but
19 particular activity on those apps, including products they searched for and services they
20
21
13 The Court is similarly unpersuaded that Plaintiffs’ alleged motive for Google’s data
22 collection—that “Google was using the data for its own purposes,” see Opp’n at 6—alters this
conclusion. Google’s Privacy Policy states that it uses the information it collects to “build better
23 services,” including to “[m]aintain and improve [its] services,” “[d]evelop new services,” and
“[p]rovide personalized services, including content and ads.” RJN Ex. A at 5; see also RJN Ex. C
24 (“The data saved in your account helps give you more personalized experiences across all Google
services.”). The provision of new, improved, and more personalized services is fundamentally
25 compatible with, and largely indistinguishable from, Google’s “commercial purposes.” See, e.g.,
Am. Compl. ¶ 33.
26
14 Google makes two additional arguments: (1) that because Plaintiffs consented to the data
collection, it cannot be unauthorized; and (2) that Hammerling’s interactions with Wish, Groupon,
27 and Picsart are not “communications” as a matter of law. Mot. at 17. Because the Court does not
find that Plaintiffs consented, it does not accept Google’s first argument; and because the Court
1 used within the application. Am. Compl. ¶¶ 19–21; Hammerling, 2022 WL 2812188, at
2 *1. This suffices to plead that the information at issue is “contents” under the CIPA. Cf.
3 Facebook Tracking, 956 F.3d at 605 (“These terms and the resulting URLs could divulge a
4 user’s personal interests, queries, and habits on third-party websites operating outside of
5 Facebook’s platform.”).
6 b. “In Transit”
7 However, Plaintiffs have not plausibly pleaded that those contents were intercepted
8 while “in transit.” Cal. Pen. Code § 631. In their amended complaint, Plaintiffs only
9 allege that Google collected “real-time data” about their use of third-party apps: See Am.
10 Compl. ¶ 4 (“Google employees have been able to monitor and collect real-time sensitive
11 personal data . . . .”); id. ¶ 49 (quoting the Committee on the Judiciary’s description of
12 Google’s data collection as “a covert effort to track real-time data on the usage and
13 engagement of third-party apps”); id. ¶ 53 (quoting the Committee on the Judiciary’s
14 conclusion that “Google’s internal reports show that Google was tracking in real-time the
15 average number of days users were active on any particular app”). Plaintiffs argue that this
16 plausibly alleges that Google “monitored and collected sensitive data in real time as users
17 were interacting with third-party apps.,” and thus that it intercepts that data while “in
18 transit.” Opp’n at 10.
19 But allegations that Google collects “real-time data” do not plausibly allege that
20 Google collects data while “in transit.” It is, for example, beyond dispute that Google
21 collected Hammerling’s “real-time data” from her visit to the Wish app on March 10,
22 2021. See Am. Compl. ¶ 19 fig.1. But that fact does not plausibly allege that Google
23 intercepted that data at that time; it may have collected that data from Wish at a later date.
24 Simply put, real-time data need not be collected in real time, and Plaintiffs do not plausibly
25 allege any mechanism that would allow Google to do so. See Rodriguez v. Google LLC,
26 20-cv-4688, 2022 WL 214552, at *2 (N.D. Cal. Jan. 25, 2022); In re Vizio, Inc., Consumer
27
1 Priv. Litig., 238 F. Supp. 3d 1204, 1228 (C.D. Cal. 2017).15
2 c. Intercepted in California
3 Further, Plaintiffs fail to allege that the data in question was intercepted in
4 California, as is required under the CIPA. Cal. Pen. Code § 631 (“passing over any wire,
5 line, or cable, or is being sent from, or received at any place within this state”). Plaintiffs
6 argue that they have alleged that “all of Google’s conduct occurs from within California
7 where it is headquartered and the data at issue is collected, stored, and used.” Opp’n at 11.
8 While it may well be true that the data at issue is “collected, stored, and used” in
9 California, that allegation is nowhere to be found in the amended complaint. See Am.
10 Compl. ¶ 12 (alleging that the Court has personal jurisdiction over Google because “its
11 principal place of business is in California” and “a substantial part of the events and
12 conduct giving rise to Plaintiffs’ claims occurred in California”); id. ¶ 13 (asserting that
13 venue is proper); id. ¶ 116 (alleging that Google “conduct[s] substantial business in
14 California”); id. ¶ 117 (“California is the state from which Google’s alleged misconduct
15 emanated.”). The fact that Plaintiffs are out-of-state residents or that California law
16 applies, see id. ¶¶ 15, 27, 114, has no bearing on whether the interception at issue took
17 place in California. Because Plaintiffs do not plead this element, their CIPA claim fails for
18 this additional reason.
19 Accordingly, Google’s motion to dismiss is granted with respect to Plaintiffs’ CIPA
20 claim.
21 F. Contract Claims (Claims 6, 7, 8)
22 In its prior order, the Court found that: (1) Plaintiffs had failed to allege a promise
23 that Google had breached; (2) Plaintiffs cannot allege an implied contract where an express
24 contract already exists covering the same subject matter; and (3) Plaintiffs cannot allege an
25
26
15 This case is distinguishable from Campbell v. Facebook, Inc., 77 F. Supp. 3d 836 (N.D. Cal.
27 2014), and In re Carrier IQ, 78 F. Supp. 3d 1051 (N.D. Cal. 2015), where the parties alleged the
mechanisms by which the defendant allegedly intercepted the messages at issue. Campbell, 77 F.
1 unjust enrichment claim when they fail to plead that Google committed an actionable
2 misrepresentation or omission. Because Plaintiffs’ amended complaint does not cure these
3 deficiencies, Google’s motion to dismiss as to the contract claims is granted.
4 1. Breach of Contract
5 In its prior order, the Court found that the statements in the Privacy Policy
6 highlighted by Plaintiffs “do not plausibly amount to a promise to collect data only from
7 Google apps or third-party apps that use Google services.” Hammerling, 2022 WL
8 2812188, at *16. In their amended complaint, Plaintiffs still fail to allege such an express
9 promise.
10 Plaintiffs cite statements characterizing the Privacy Policy, such as that it is “meant
11 to help users understand what information [Google] collect[s], why [it] collect[s] it, and
12 how [users] can update, manage, export, and delete their information,” and that it attempts
13 to explain these issues “as clearly as possible.” RJN Ex. A at 1. As found in the Court’s
14 prior order, such statements are not express promises, but aspirational and prefatory
15 statements. Hammerling, 2022 WL 2812188, at *16. Regarding Google’s Activity
16 Controls, Plaintiffs point to statements like users “have choices regarding the information
17 [Google] collect[s] and how it’s used” via “key controls for managing your privacy across
18 [its] services.” Opp’n at 2 (quoting RJN Ex. A at 7–8); see also Opp’n at 3 (stating that the
19 WAA setting “[s]aves your activity on Google sites and apps” (quoting WAA Disclosure)
20 (emphasis omitted)). But Plaintiffs do not allege that Google has failed to provide such
21 choices, or that Plaintiffs have not been able to use those controls; in fact, they allege that
22 they have enabled particular settings in Google’s Activity Controls. See Am. Compl. ¶¶
23 19, 21. Plaintiffs further argue that the introductory statements in the Privacy Policy,
24 combined with the statements regarding the Activity Controls, represent to users that
25 “Google had provided them a comprehensive list of all the data Google collects and why.”
26 Opp’n at 7. But an express promise of such a “comprehensive list” was never made. See
27 Hammerling, 2022 WL 2812188, at *16; RJN Ex. A (“The activity information we collect
1 apps, and devices that use Google services”). And while Google states that it collects data
2 to give users “more personalized experiences,” it does not promise that that is the only
3 reason it collects such data. See WAA Disclosure; see also RJN Ex. A at 5 (stating in the
4 Privacy Policy that Google uses the information it collects to “build better services,”
5 including to “[m]aintain and improve [its] services,” “[d]evelop new services,” and
6 “[p]rovide personalized services”). Taken together, these statements do not allege a
7 promise that has been breached.16
8 2. Implied Contract
9 In its prior order, the Court dismissed Plaintiffs’ implied contract claim because
10 “there is a valid express contract covering the subject matter,” which requires the dismissal
11 of any implied contract claim. See Hammerling, 2022 WL 2812188, at *16 (quoting Be
12 In, Inc. v. Google Inc., 12-cv-3373, 2013 WL 5568706, at *5 (N.D. Cal. Oct. 9, 2013)).
13 Because there is still an express contract governing the subject matter of the implied
14 contract claim—the “scope and purpose of data collection”—the implied contract claim
15 must again be dismissed. Id.17
16 3. Unjust Enrichment
17 In its prior order, the Court found that because Plaintiffs failed to allege an
18 actionable misrepresentation or omission, Plaintiffs’ unjust enrichment claim could not
19 stand. Hammerling, 2022 WL 2812188, at *17. Because the Court again finds that
20 Plaintiffs’ fraud claims cannot survive a motion to dismiss, their unjust enrichment claims
21
22
16 Plaintiffs’ reliance on Brown v. Google LLC, 20-cv-3664, 2021 WL 6064009 (N.D. Cal. Dec.
23 22, 2021), is misplaced. In that case, Google had made express promises that it would not save
particular data while users were in Incognito mode. See, e.g., id. at *13 (“Chrome won’t save . . .
24 [y]our browsing history [or] [c]ookies and site data.”). No similar promises were made here.
17 Plaintiffs argue that, because “Google seeks to expand the scope of the case beyond” the
25 Privacy Policy at issue in the Court’s prior order to additional disclosures in Google’s Activity
Controls, Opp’n at 13, that an implied contract is created when considering those documents in
26 addition to the Privacy Policy. First, Plaintiffs referred to (but did not attach) additional
documents in the amended complaint; so Plaintiffs themselves expanded the scope of the case.
27 See Am. Compl. ¶¶ 23, 32. But second, and more fundamentally, Google’s Activity Controls are
incorporated into the Privacy Policy, and thus are part of the express contract between Google and
1 must also be dismissed.18
2 G. Remaining UCL Claims
3 In its prior order, the Court found that because Plaintiffs’ predicate claims failed,
4 their UCL claims under the unlawful prong must fail. Hammerling, 2022 WL 2812188, at
5 *15. Additionally, because “the ‘conduct’ on which Plaintiffs base their claims under all
6 three UCL prongs is the same,” the UCL claims under the unfair prong must also fail. Id.
7 at *15. Because the Plaintiffs’ predicate claims in their amended complaint still fail,
8 Plaintiffs cannot allege a claim under the unlawful prong.
9 Plaintiffs argue that their claim under the unfair prong should survive nonetheless,
10 because “Google’s covert collection of consumer data without consent directly violates
11 California’s strong public policy of protecting privacy rights.” Opp’n at 19 (citing
12 Cappello v. Walmart, Inc., 394 F. Supp. 3d 1015, 1024 (N.D. Cal. 2019)). But in Cappello
13 the plaintiffs had survived a prior motion to dismiss on a privacy claim; here, the Court
14 dismisses each of Plaintiffs’ privacy claims. Cappello, 394 F. Supp. 3d at 1017; see also
15 supra Section III.E. Therefore, because “the unfair prong of the UCL cannot survive if the
16 claims under the other two prongs . . . do not survive,” Plaintiffs’ claim under the unfair
17 prong must be dismissed. Hammerling, 2022 WL 2812188, at *15 (quoting Eidmann v.
18 Walgreen Co., 522 F. Supp. 3d 634, 647 (N.D. Cal. 2021)).
19 Thus, Plaintiffs’ remaining UCL claims are dismissed.
20 H. Declaratory Judgment (claim 9)
21 Finally, Plaintiffs renew their claim for relief under the Declaratory Judgment Act.
22 Because “if the underlying claims are dismissed, . . . then there is no basis for any
23 declaratory relief,” the Court grants the motion to dismiss on this claim. Hammerling,
24 2022 WL 2812188, at *17 (quoting Muhammad v. Conner, 10-cv-1449, 2012 WL
25
26
18 Plaintiffs’ reference to In re Google Location Hist. Litig., 514 F. Supp. 3d 1147 (N.D. Cal.
2021) does not convince the Court otherwise. That case concerned collection and storage of
27 location data, which is only discussed briefly in the Privacy Policy and not at all in the Terms of
Service. Id. at 1159. Conversely, the collection of the types of user data at issue in this case is
1 || 2428937, at *3 (N.D. Cal. June 26, 2012)).
2 || IV. CONCLUSION
3 For the foregoing reasons, the Court GRANTS Google’s motion to dismiss as to all
4 || claims. Because Plaintiffs have failed to cure the deficiencies in their initial complaint, the
5 |} Court dismisses Plaintiffs’ claims with prejudice. See Leadsinger, 512 F.3d at 532.
6 IT ISSO ORDERED. iE
7 Dated: December 1, 2022
CHARLES R. BREYER
8 United States District Judge
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