Afedo

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7 UNITED STATES DISTRICT COURT

8 NORTHERN DISTRICT OF CALIFORNIA

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10 DYNASTO AFEDO,

Case No. 25-cv-01884-NC

11 Plaintiff,

ORDER GRANTING

12 v. DEFENDANT’S MOTION TO

DISMISS PLAINTIFF’S THIRD

13 GOOGLE LLC, AMENDED COMPLAINT (TAC)

WITHOUT LEAVE TO AMEND

14 Defendant. AND WITH PREJUDICE

15 Re: ECF 81

16

17 This civil case against Defendant Google LLC brought by Plaintiff Dynasto Afedo

18 arises from Defendant’s issues with its Google Play Console developer verification system.

19 Plaintiff’s Third Amended Complaint (TAC) alleges that Defendant was negligent by

20 failing to warn Plaintiff about the systemic and irremediable nature of the verification

21 system’s issues despite imposing deadlines for users to complete verification or have their

22 account restricted or terminated. ECF 78 (TAC) ¶ 75.

23 Defendant moves to dismiss Plaintiff’s TAC under Federal Rule of Civil Procedure

24 12(b)(6) because it argues that the economic loss rule bars Plaintiff’s negligence claim, or

25 alternatively, that Plaintiff fails to sufficiently plead the elements of his negligence claim.

26 ECF 78. The Court GRANTS Defendant’s motion to dismiss WITHOUT LEAVE TO

27 AMEND and WITH PREJUDICE because Plaintiff’s sole claim is barred by the economic

1 I. BACKGROUND

2 A. Factual Allegations

3 Plaintiff’s TAC alleges the following facts:

4 Plaintiff is an independent mobile application developer who relied on Google Play

5 Console to distribute and manage mobile applications. TAC ¶ 3. Defendant owns,

6 operates, and controls the Google Play Store and Google Play Console and supplies

7 verification procedures and compliance instructions to developers. Id. ¶ 4.

8 Defendant requires developers who publish applications through the Google Play

9 Store to complete verification in order to access Google Play Console. Id. ¶ 14.

10 Defendant exclusively controls the verification system, the criteria for verification

11 approval or denial, the technical infrastructure by which verification attempts are

12 processed, and the enforcement mechanisms tied to non-verification. Id. ¶ 16. Developers

13 must rely on Defendant’s official instructions and support communications as the sole

14 means of attempting compliance for verification. Id. ¶ 17. Failure to complete verification

15 by the assigned deadline may result in account restriction or termination. Id. ¶ 15.

16 In or about November 2023, Plaintiff attempted to complete verification following

17 Defendant’s published procedures. Id. ¶¶ 18–19. Plaintiff did so for over 470 days. Id. ¶

18 19. Despite complying with Defendant’s procedures, all verification attempts failed, with

19 the system returning the message: “We can’t verify your phone number right now. Try

20 again later.” Id. ¶ 20.

21 Plaintiff reported the repeated verification failures to Defendant through official

22 developer support channels, explaining that verification could not be completed despite

23 procedural compliance. Id. ¶ 22. On or about July 31, 2024, Defendant acknowledged

24 Plaintiff’s report and escalated the issue to its technical team for investigation. Id. ¶ 23.

25 On or about August 30, 2024, Defendant informed Plaintiff that the issue remained under

26 investigation and that it was still working to determine a resolution, stating: “As our

27 technical team is still currently working on resolving phone number verification issues

1 encountered by developers, I’m still unable to provide you any new information or

2 resolution regarding your concern.” Id. ¶ 24.

3 By no later than early August 2024, Defendant knew that Plaintiff’s verification

4 failures were caused by unresolved system-level conditions and that repeated verification

5 attempts would likely remain unsuccessful until those conditions were remedied. Id. ¶ 30.

6 Despite knowing that Plaintiff could not comply, in October 2024, Defendant issued

7 formal verification deadlines that would result in account removal if verification was not

8 done. Id. ¶ 31. Defendant continued to issue official procedural instructions directing

9 Plaintiff to take specific actions to complete verification. Id. ¶ 32. Plaintiff continued

10 attempting verification in reliance on Defendant’s guidance while his developer accounts

11 remained subject to restriction or termination for non-verification. Id. ¶ 37. On November

12 4, 2024, Defendant publicly acknowledged that phone number verification issues were

13 affecting developers and that resolution remained a work in progress. Id. ¶ 39.

14 In reliance on Defendant’s instructions, Plaintiff continued repeated verification

15 attempts over an extended period, delayed alternative mitigation efforts, maintained

16 development activities dependent on Google Play Console access, and exposed his

17 developer accounts to enforcement actions. Id. ¶ 41.

18 Plaintiff was unable to complete verification, and Defendant subsequently

19 terminated Plaintiff’s second developer account for failure to verify. Id. ¶¶ 43–43.

20 Plaintiff’s first developer account remained inaccessible for an extended period, resulting

21 in additional losses. Id. ¶ 44.

22 B. Procedural History

23 Plaintiff filed his initial complaint against Defendant on February 21, 2025, and

24 filed his first amended complaint (FAC) on February 24, 2025. ECF 1; ECF 8. Both

25 complaints alleged a breach of the Google Developer Distribution Agreement and included

26 a copy of the Agreement. ECF 1 at 11; ECF 8; ECF 8-1. Both also alleged that Plaintiff’s

27 access to his developer accounts was subject to the Agreement. ECF 1 ¶ 11; ECF 8 ¶ 11.

1 Defendant moved to dismiss Plaintiff’s FAC, which the Court granted with leave to

2 amend. ECF 36; ECF 55.

3 Plaintiff then filed his Second Amended Complaint (SAC). ECF 58. It did not

4 include the Agreement. Defendant moved to dismiss Plaintiff’s SAC, which the Court

5 granted with leave to amend. ECF 61; ECF 75.

6 Plaintiff then filed his TAC. TAC. It did not include the Agreement. Defendant

7 moved to dismiss Plaintiff’s TAC. ECF 81 (Mot.). Plaintiff opposed. ECF 84 (Opp’n).

8 Defendant replied. ECF 89 (Reply).

9 All parties have consented to magistrate judge jurisdiction. ECF 20; ECF 27.

10 II. LEGAL STANDARD

11 A motion to dismiss for failure to state a claim under Rule 12(b)(6) tests the legal

12 sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “To

13 survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as

14 true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.

15 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). When

16 reviewing a 12(b)(6) motion, a court “must accept as true all factual allegations in the

17 complaint and draw all reasonable inferences in favor of the non-moving party.” Retail

18 Prop. Trust v. United Bd. of Carpenters & Joiners of Am., 768 F.3d 938, 945 (9th Cir.

19 2014). A court, however, need not accept as true “allegations that are merely conclusory,

20 unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Secs.

21 Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). A claim is facially plausible when it “allows

22 the court to draw the reasonable inference that the defendant is liable for the misconduct

23 alleged.” Id. If a court grants a motion to dismiss, leave to amend should be granted

24 unless the pleading could not possibly be cured by the allegation of other facts. Lopez v.

25 Smith, 203 F.3d 1122, 1127 (9th Cir. 2000).

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1 III. DISCUSSION

2 Defendant moves to dismiss Plaintiff’s TAC under Rule 12(b)(6) because it argues

3 (1) Plaintiff’s negligence claim is barred by the economic loss rule, or in the alternative,

4 (2) Plaintiff failed to plead the elements of his negligence claim. ECF 78.

5 A. Plaintiff’s Negligence Claim is Barred by the Economic Loss Rule

6 Defendant argues that Plaintiff’s claim for negligence is barred by the economic

7 loss rule. Mot. at 5. The Court finds that regardless of whether the Court considers the

8 Agreement, Plaintiff’s negligence claim is barred by the economic loss rule.

9 1. The Court Can Consider Plaintiff’s Prior Allegations Regarding the

10 Agreement

11 As an initial matter, the Court is persuaded that it can consider Plaintiff’s prior

12 allegations that he and Defendant entered the Agreement and that it governs his access to

13 his developer account. Plaintiff is correct that generally, a “district court may not consider

14 any material beyond the pleadings in ruling on a Rule 12(b)(6) motion.” Opp’n at 5 (citing

15 Lee v. City of L.A., 250 F.3d 668, 688 (9th Cir. 2001)). However, a court can “consider the

16 prior allegations as part of its ‘context-specific’ inquiry based on its judicial experience

17 and common sense to assess whether an amended complaint ‘plausibly suggests an

18 entitlement to relief’” when evaluating an amended complaint. McKenna v. WhisperText,

19 No. 14–cv–00424–PSG, 2015 WL 5264750, at *3 (N.D. Cal. Sept. 9, 2015); see also J.

20 Edwards Jewelry Distrib., LLC v. Wells Fargo & Co., No. 18-cv-03886-YGR, 2019 WL

21 2329248, at *4 (N.D. Cal. May 31, 2019) (finding that a plaintiff cannot avoid application

22 of the statute of limitations by simply deleting evidence from its amended complaint

23 allegations). As such, it is proper for the Court to consider Plaintiff’s previous allegations

24 that the Agreement exists and governs Plaintiff’s access to his developer account when

25 assessing Defendant’s economic loss rule argument. McKenna, 2015 WL 5264750, at *3

26 (finding that the plaintiff failed to state a claim because it was “undeniable” from the

27 plaintiff’s previous allegations that it was implausible); ECF 1, 8 (alleging that Defendant

1 2. The Court Assesses the Applicability of the Economic Loss Rule

2 Using California Law

3 The Court uses California law to analyze Defendant’s argument that Plaintiff’s

4 claim is barred by the economic loss rule because claims relating to the Agreement are

5 governed by the laws of the State of California. See ECF 1 at 14; ECF 8-1.

6 The economic loss rule provides that “[i]n general, there is no recovery in tort for

7 negligently inflicted ‘purely economic losses,’ meaning financial harm unaccompanied by

8 physical or property damage.” Sheen v. Wells Fargo Bank, N.A., 12 Cal. 5th 905, 922

9 (2022) (citing Robinson Helicopter Co., Inc. v. Dana Corp., 34 Cal. 4th 979, 988 (2004)).

10 The rule often functions to bar claims in negligence for pure economic losses in deference

11 to a contract between litigating parties. Id. “Under California law, the economic loss rule

12 provides that a party to a contract must ‘recover in contract’ rather than tort ‘for purely

13 economic loss due to disappointed expectations, unless [they] can demonstrate harm above

14 and beyond a broken contractual promise.’” Costa v. Reliance Vitamin Co., No. 22-cv-

15 04679-WHO, 2023 WL 2989039, *5 (N.D. Cal. Apr. 18, 2023) (quoting Robinson

16 Helicopter Co., 34 Cal. 4th at 988). As such, courts will generally permit tort suits if the

17 defendant allegedly violated a duty rooted in tort principles that is independent of the

18 parties’ contractual rights and obligations and exposed the plaintiff to a risk of harm

19 beyond the parties’ reasonable contemplation when they entered into the contract.

20 Rattagan v. Uber Techs., Inc., 17 Cal. 5th 1, 23 (2024).

21 3. Plaintiff’s Negligence Claim Resulted in Only Economic Damages

22 Plaintiff’s TAC seeks purely economic losses when it requested damages for time

23 and labor expended attempting verification, opportunity costs incurred by delaying

24 alternative mitigation strategies, development and operational costs incurred while

25 maintaining activities dependent on Google Play Console, and economic losses arising

26 from temporary account inaccessibility and termination of Plaintiff’s second developer

27 account. TAC ¶ 91; see Dugas v. Starwood Hotels & Resorts Worldwide, Inc., No. 16-cv-

1 associated with time spent and loss of productivity” are economic losses); see Cisco Sys.,

2 Inc. v. STMicroelectronics, Inc., 77 F. Supp. 3d 887, 895 (N.D. Cal. 2014) (citations

3 omitted) (finding that damages for inadequate value, cost of repair, cost of replacement of

4 defective products, and lost opportunities are economic losses). Plaintiff did not allege

5 personal injury or physical damage to property. See, generally, TAC. Plaintiff does not

6 dispute that he is seeking purely economic losses. Opp’n at 3 (stating that he seeks “only

7 reliance-based economic damages”).

8 4. Plaintiff’s Negligence Claim Did Not Allege Harm Above and

9 Beyond a Broken Contractual Promise

10 Plaintiff’s negligence claim did not allege harm above and beyond a broken

11 contractual promise. The Agreement governs Plaintiff’s access to his developer account.

12 ECF 8 ¶ 11. Plaintiff’s negligence claim revolves around Defendant’s communication

13 with Plaintiff about his verification process to access his developer account and his

14 subsequent account restriction/termination. TAC ¶¶ 69–85. And the damages Plaintiff

15 seeks flow immediately from the inability to access his developer account. See TAC ¶ 91

16 (listing “[e]conomic losses arising from temporary account inaccessibility” as one of his

17 damages). As such, Plaintiff’s claim is not independent of the contract, nor did it allege an

18 injury that was not reasonably contemplated when the Agreement was formed. See Sinatro

19 v. Mrs. Gooch’s Nat. Food Mkts., Inc., No. 22-cv-03603-TLT, 2023 WL 2324291, at *15

20 (N.D. Cal. Feb. 16, 2023) (finding that the plaintiffs’ negligent misrepresentation was

21 barred by the economic loss rule because their alleged damages arose entirely in contract).

22 While Plaintiff argues that his claim is “independent of the contract” because “the

23 duty here arises from conduct, not promise,” Plaintiff’s allegations in his TAC are

24 premised on the same conduct he took issue with in his previous complaints alleging

25 breach of contract. Opp’n at 7; see, generally, ECF 1, ECF 8. Courts in this district have

26 found that a negligence claim is “squarely foreclosed” by the economic loss rule when “the

27 allegations giving rise to its negligence claim are identical to those giving rise to its claim

1 926899, at *7 (N.D. Cal. Apr. 6, 2026). Regardless, Plaintiff failed to identify any viable

2 independent tort duty. See Rattagan, 17 Cal. 5th at 26 (finding that the court must

3 determine whether there is an independent tort duty to refrain from the alleged conduct).

4 Plaintiff does not identify any statute or regulation as imposing Defendant’s alleged “duty

5 to warn developers, suspend enforcement . . . , and refrain from account restriction and

6 termination-backed deadline enforcement for as long as its own system failure persisted.”

7 Opp’n at 7.

8 5. The Parties Do Not Have a Special Relationship

9 Plaintiff also argues that the parties had a special relationship that would serve as an

10 exception to the economic loss rule. It is unclear as to when an exception for special

11 relationships can apply to parties in privity of contract—some courts have found that

12 contractual privity in general is a bar to the special relationship exception, while others

13 found that the exception is only barred when the contract involves goods. Compare R

14 Power Biofuels, LLC v. Chemex LLC, No. 16-cv-00716-LHK, 2016 WL 6663002, at *7

15 (N.D. Cal. Nov. 11, 2016), with, Grey Fox v. Plains All Am. Pipeline, No. 16-cv-1603157-

16 PSG-JEM, 2024 WL 306222, at *5 (C.D. Cal. Jan. 9, 2024). Regardless, there is no

17 special relationship exception here because Plaintiff does not sufficiently identify a special

18 relationship between the parties.

19 Plaintiff first contends that he and Defendant have a special relationship because

20 “Google had exclusive control over verification, exclusive knowledge of the system

21 failure, Plaintiff had no alternative compliance pathway, and Plaintiff faced termination if

22 he failed to comply.” Opp’n at 15. However, courts have previously declined to find that

23 parties have a special relationship “due to the unequal bargaining power as to . . . contracts

24 and [a party’s] exclusive control over [its consumers].” See In re Sw. Airlines Co. Flight

25 Disruption Litig., No. 23-cv-00306-AJB-SBC, 2024 WL 4983147, at *9–10 (S.D. Cal.

26 Dec. 4, 2024). Courts have also declined to find that there is a special relationship even if

27 a party had exclusive control of their service and had knowledge of the system’s failure.

1 See Julie Barfuss v. Live Nation Ent., Inc, No. 23-cv-1114-GW-DTBX, 2025 WL

2 3691402, at *1 (C.D. Cal. Nov. 21, 2025).

3 Plaintiff then argues that he and Defendant have a special relationship because

4 Defendant made a “targeted investigation of Plaintiff’s specific circumstances, through

5 which Google acquired superior knowledge of a risk that Plaintiff could not independently

6 discover.” Opp’n at 16. The Court is unpersuaded by Plaintiff’s argument. The cases and

7 framework that Plaintiff cites to support the existence of a special relationship are

8 irrelevant—they are all inapplicable to claims for purely economic injuries and instead

9 apply to cases where there was physical or property damage. See, e.g., Mann v. State of

10 California, 70 Cal. App. 3d 773 (Ct. App. 1977) (personal injury action); see also The L.

11 Firm of Fox & Fox v. Chase Bank, N.A., 95 Cal. App. 5th 182, 194 n.9 (2023) (emphasis

12 added) (stating that the “special relationship” doctrine in Regents of Univ. of Cal. v.

13 Superior Ct., 4 Cal. 5th 607, 621 (2018), was to determine a defendant’s affirmative duty

14 to “protect a plaintiff from foreseeable noneconomic injury” and is different from the

15 “special relationship” doctrine for a third party who “suffered only economic loss”).

16 Because there is no special relationship, even if the Court did not consider

17 Plaintiff’s prior allegations regarding the Agreement, it would still find that Plaintiff’s

18 negligence claim is barred by the economic loss rule. See Kalitta Air, LLC v. Cent. Tex.

19 Airborne Sys., Inc., 315 F. App’x 603, 605 (9th Cir. 2008) (citing J’Aire Corp. v. Gregory,

20 24 Cal.3d 799, 804 (1979) (“In the absence of (1) personal injury, (2) physical damage to

21 property, (3) a ‘special relationship’ existing between the parties, or (4) some other

22 common law exception to the rule, recovery of purely economic loss is foreclosed.”).

23 In conclusion, Plaintiff’s negligence claim is barred by the economic loss rule: it

24 seeks purely economic damages, did not allege harm above and beyond a broken

25 contractual promise, and does not involve a special relationship. As such, the Court

26 GRANTS Defendant’s motion to dismiss Plaintiff’s TAC.

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1 B. The Court Need Not Address Defendant’s Failure to State a Claim

2 Arguments or Plaintiff’s Mischaracterization Argument

3 Because the Court finds that Plaintiffs sole claim in his TAC is barred by the

4 || economic loss rule and dismisses the TAC, it need not address Defendant’s remaining

5 || arguments contending that Plaintiff failed to state a negligence claim. It also need not

6 || address Plaintiff's argument that the Court deny Defendant’s motion because Defendant

7 || mischaracterized certain facts in the TAC. Opp’n at 4. Plaintiff did not identify any

8 || statutory or common law bases for doing so, and the Court did not rely on the alleged

9 || mischaracterizations.

10 C. The Court Grants Defendant’s Motion to Dismiss Without Leave to

11 Amend and With Prejudice

12 Under Rule 15(a), leave to amend “shall be freely given when justice so requires,”

13 || but the “decision of whether to grant leave to amend nevertheless remains within the

C 14 || discretion of the district court.” Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 532

15 || (9th Cir. 2008). However, leave to amend may be denied when “the court determines that

16 || the allegation of other facts consistent with the challenged pleading could not possibly cure

5 17 || the deficiency.” Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401

18 || (9th Cir. 1986). Thus, leave to amend “is properly denied . . . if amendment would be

19 || futile.” Carrico v. City & Cnty. of S.F., 656 F.3d 1002, 1008 (9th Cir. 2011).

20 Here, in light of Plaintiff's sole claim being barred by the economic loss rule, the

21 || Court finds that amendment would be futile. The Court grants Defendant’s motion to

22 || dismiss without leave to amend and with prejudice.

23 || IV. CONCLUSION

24 In conclusion, the Court GRANTS Defendant’s motion to dismiss Plaintiff’s TAC.

25 || The Court does so WITHOUT LEAVE TO AMEND and WITH PREJUDICE.

26 IT IS SO ORDERED.

27 || Dated: April 16, 2026 Lhe_————

NATHANAEL M. COUSINS

28 United States Magistrate Judge