Petition for Writ of Certiorari — Taiming Zhang, Petitioner v. X Corp., fka Twitter, Inc.

Supreme Court briefJan 16, 2025

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What actually matters in this document.

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Appendix

CA-9 23-16125 case summary

CA-9 23-16125 unpublished “memo” in place of final judgment

CA filing “Putting insurrection on record” comment on the “memo” *(important to consider)

CAND judgement and IFP order

statutes involved

Zuckerberg letter to House and My Comment on the letter to House

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FILED

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

JAN 10 2025

MOLLY C. DWYER, CLERK

. U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

No.

TAIMING ZHANG,

Plaintiff-Appellant,

23-16125

D.C. No. 3:23-cv-00980-JSC

MEMORANDUM*

TWITTER, INC.,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of California

Jacqueline Scott Corley, District Judge, Presiding

Submitted January 10, 2025**

Before: O’SCANNLAIN, FERNANDEZ, and SILVERMAN, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision without

oral argument. See Fed. R. App. P. 34(a)(2).

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claims. Fed. R. Civ. P. 12(b)(6). We need not and do not consider the district

court’s alternative ground for dismissal. See City & County of San Francisco v.

Barr, 965 F.3d 753, 761 (9th Cir. 2020); see also 47 U.S.C. 230(c)(1); Calise v.

Meta Platforms, Inc., 103 F.4th 732, 740, 742 (9th Cir. 2024).

Reviewing for abuse of discretion, we affirm the district court’s dismissal of

Zhang’s claims with prejudice.11 The district court determined that any

amendment to Zhang’s first amended complaint would be futile. See Foman v.

Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230, 9 L. Ed. 2d 222 (1962). Upon our de

novo review, we agree that none of Zhang’s claims could be saved by amendment.

SeeLeadsinger, Inc. v. BMGMusicPubl’g., 512 F.3d 522, 532 (9th Cir. 2008).

Accordingly, the district court did not abuse its discretion by dismissing this action

with prejudice.

All pending motions are denied.

AFFIRMED.

11 See Gompper v. VISX, Inc., 298 F.3d 893, 898 (9th Cir. 2002).

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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

Plaintiff,

Case No. 23-cv-00980-JSC

TAIMING ZHANG,

ORDER RE: MOTION TO DISMISS

AMENDED COMPLAINT

Re: Dkt. No. 40

TWITTER INC.,

Defendant.

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Plaintiff, Taiming Zhang, who is representing himself, brings claims against Twitter, Inc.1,

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following the permanent suspension of his Twitter account in 2021. Twitter’s motion to dismiss

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Plaintiff’s Amended Complaint is pending before the Court. (Dkt. No. 40.2) Having considered

the parties’ briefs and the relevant legal authority, the Court concludes oral argument is

motion to dismiss. The Communications Decency Act, 47 U.S.C. § 230 (“CDA”), bars Plaintiff s

claims and, in any event, he fails to state a plausible claim.

BACKGROUND

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unnecessary, see Civ. L.R. 7-l(b), VACATES the August 24, 2023 hearing, and GRANTS the

A. Amended Complaint Allegations

Twitter suspended Plaintiffs account in November 2021 for “violating twitter rules,” but

“the only thing [Plaintiff] ever did with the account during that period was direct messaging

people inciting for them to expose [another Twitter user’s] HIV status so that he does not spread

the infectious disease on a daily basis.” (Dkt. No. 34 at 17.) According to Plaintiff, this other

l Although Twitter has been rebranded “X Corp.,” the parties continue to refer to Defendant as

Twitter in their briefs and the Court does so here as well for ease of reference.

2 Record Citations are to material in the Electronic Case File (“ECF”); pinpoint citations are to the

ECF-generated page numbers at the top of the document.

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Twitter user, @troyejacobsxxx, uses his account to promote a paid gay porn subscription account

on OnlyFans.com. (Id. at 13-15.) Based on a 2021 tweet by @troyejacobsxxx stating he “has a

disease ‘other gays have’” Plaintiff believes this Twitter user has HIV. (Id. at 14.) Plaintiff

requested @troyejacobsxxx provide him with a blood test, but he declined. (Id. at 14-15.) Plaintiff

then began contacting other “gay pom stars [on Twitter] asking them to expose his HIV status to

protect people in the industry.” (Id. at 16.) Twitter suspended Plaintiffs account shortly

thereafter. (Id. at 17.)

Plaintiff filed numerous appeals of his suspension with Twitter, but received no response.

(Id. at 19.) Plaintiff also reported @troyejacobsxxx for posting “cruising videos” depicting

“public sex with college students on campuses, failing to verify their age, who may very well be

under 18,” but Twitter did not remove the content or suspend @troyejacobsxxx’s account. (Id. at

19.) Finally, Plaintiff reported @troyejacobsxxx for violating Twitter’s financial scam policy after

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he was “lured” to @troyejacobsxxx’s OnlyFans.com site and “scammed [of his] money.” (Id. at

20-22.)

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B. Procedural Background

Plaintiff filed this action on March 2, 2023 alleging numerous claims and seeking $11

million in damages. (Dkt. No. 1.) After Twitter moved to dismiss, Plaintiff filed a 115-page

Amended Complaint as of right under Federal Rule of Civil Procedure 15(a)(1)(B). (Dkt. No. 34.)

While it is difficult to discern Plaintiffs precise legal claims, he appears to allege claims for

breach of contract, fraud, violation of California’s Unfair Competition Law (the “UCL”), and tort

claims including intentional infliction of emotional distress (IIED) and assault based on the risk of

contracting HIV, and defamation, as well as claims based on violation of criminal statutes, 18

U.S.C. §§ 2252, 2252A, 2257. (Id. at 4, 58.)

Plaintiffs Amended Complaint was accompanied by a motion for a temporary restraining

order seeking an order requiring Twitter to reinstate his account and permanently suspend

@troyejacobsxxx’s account. (Dkt. No. 36.) The Court denied the TRO because Plaintiff had not

demonstrated a likelihood of success on the merits or irreparable harm. (Dkt. No. 46.) Twitter

thereafter moved to dismiss the Amended Complaint and the parties stipulated to an extended

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briefing schedule. (Dkt. Nos. 40, 44.) The motion is now fully briefed and set for hearing on

August 24, 2023.

C. Judicial Notice and Incorporation by Reference

When ruling on a Rule 12(b)(6) motion, district courts may consider documents attached to

the complaint, documents incorporated by reference into the complaint, and matters of judicial

notice without converting a motion to dismiss into one for summary judgment. United States v.

Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). Documents not attached to a complaint whose contents

are alleged and whose authenticity no party questions may be incorporated by reference into a

complaint if the plaintiffs pleading refers extensively to the document or the document forms the

basis of the plaintiffs claims. See Davis v. HSBC Bank Nevada, N.A., 691 F.3d 1152, 1160 (9th

Cir. 2012); Ritchie, 342 F.3d at 908. The Court may take judicial notice of matters either (1)

generally known within the trial court’s territorial jurisdiction or (2) capable of accurate and ready

determination by resort to sources whose accuracy cannot reasonably be questioned. Fed. R. Evid.

201(b).

Twitter requests the Court consider eight documents under either the judicial notice or

incorporation by reference doctrines. (Dkt. No. 42.) These include: (1) Twitter’s signup page for

new account holders as it existed when Plaintiff allegedly created his Twitter account (Exhibit A);

(2) Twitter’s Terms of Service as they existed when Plaintiff allegedly created his Twitter account,

available at https://web.archive.org/web/20130303002826/twitter.com/tos (Exhibit B); (3)

Twitter’s Terms of Service in effect when Plaintiffs account was allegedly suspended in

November 2021 and when Plaintiff allegedly reported the third-party account holder for violating

Twitter’s policies in April 2022, available at

https://web.archive.org/web/20211101094841 /httns://twitter.com/en/tos (Exhibit C); (4) Twitter’s

“Abusive behavior policy,” in effect when Plaintiffs account was allegedly suspended in

November 2021, available at

https://web.archive.org/web/20211103202418/httns://help.twitter.com/en/rules-

andpolicies/abusive-behavior (Exhibit D); (5) Twitter’s “Platform manipulation and spam policy”

which was in effect in was in effect when Plaintiff s account was allegedly suspended in

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November 2021, available at

https://web.archive.org/web/20211101232239/https://help.twitter.com/en/rules-

andpolicies/platform-manipulation (Exhibit E); (6) Twitter’s “Financial scam policy,” which was

in effect when Plaintiffs account was allegedly suspended in November 2021, available at

https://web.archive.org/web/20211023003617/https://help.twitter.com/en/rules-andpoli

cies/financial-scam (Exhibit F); (7) Twitter’s “Child sexual exploitation policy,” which was in

effect when Plaintiffs account was allegedly suspended in November 2021, available at

https://web.archive.org/web/20211110040919/https://help.twitter.com/en/rules-andpolicies/sexual-

exploitation-policy (Exhibit G); and (8) a copy of the complaint filed in the San Francisco County

Superior Court Case Number CGC-22-602784 (Exhibit H).

Exhibits A though G are properly subject to judicial notice because they are publicly

available webpages and their contents are not subject to reasonable dispute. See Threshold Enters.

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Ltd. v. Pressed Juicery, Inc., 445 F. Supp. 3d 139, 146 (N.D. Cal. 2020) (“In general, websites and

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their contents may be judicially noticed” and collecting cases re: the same). Plaintiffs contention

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“counsel has a propensity of lying” and there is no proof these documents represent what is on the

web archive is not well-taken. (Dkt. No. 53 at 24-25.) Plaintiff does not dispute the content of

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these documents, but instead impugns counsel’s credibility. Courts routinely take judicial notice

of terms of service. See, e.g., Yuksel v. Twitter, Inc., No. 22-CV-05415-TSH, 2022 WL 16748612,

at *2 (N.D. Cal. Nov. 7, 2022) (taking judicial notice of Twitter’s Terms of Service); Trudeau v.

Google LLC, 349 F. Supp. 3d 869, 876 (N.D. Cal. 2018) (taking judicial notice of Google's Terms

of Service); Matera v. Google Inc., 2016 WL 5339806, at *7 (N.D. Cal. Sept. 23, 2016) (same).

Likewise, “district courts in this circuit have routinely taken judicial notice of content from the

Internet Archive’s Wayback Machine pursuant to [Rule 201].” In re Face book, Inc. Sec. Litig.,

405 F. Supp. 3d 809, 829 (N.D. Cal. 2019); see also Parziale v. HP, Inc., 2020 WL 5798274, at *3

(N.D. Cal. Sept. 29, 2020) (same) (collecting cases); Brown v. Google LLC, 2021 WL 949372, at

*5 (N.D. Cal. Mar. 12,2021) (“Courts have taken judicial notice of the contents of web pages

available through the Wayback Machine as facts that can be accurately and readily determined

from sources whose accuracy cannot reasonably be questioned.”).

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Plaintiffs Amended Complaint alleges breach of contract and fraud claims predicated on

Twitter’s suspension of his account in violation of its Terms of Service, and refusal to take any

action regarding the third-party user’s account in violation of its Platform Manipulation and Spam

policy, Abusive Behavior policy, Financial Scam policy, and Child Sexual Exploitation policy.

(See, e.g., Dkt. No. 34 at 4-6, 8-10, 28, 61.) Exhibits B-G are thus also properly subject to

incorporation by reference.

DISCUSSION

Twitter raises three arguments in favor of dismissal: (1) Plaintiffs claims are barred by

Section 230 of the Communications Decency Act, 47 U.S.C. § 230; (2) Plaintiffs claims are

barred by the First Amendment; and (3) Plaintiff fails to state a plausible claim for relief.

A. Section 230 of the Communications Decency Act

Twitter insists Section 230 of the Communications Decency Act, 47 U.S.C. § 230

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(“CD A”), bars Plaintiffs claims because they are predicated on Twitter’s suspension of his

account, failure to suspend the third-party user’s account, and failure to take action regarding the

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content posted on the third-party Twitter user’s account. Section 230 of the CDA “immunizes

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providers of interactive computer services against liability arising from content created by third

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parties.” FairHous. Council of San Fernando Valley v. Roommates.Com, LLC (“Roommates"),

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521 F.3d 1157, 1162 (9th Cir. 2008) (en banc). Under Section 230(c)(1), “providers or users of an

interactive computer service shall not be treated as the publisher or speaker of any information

provided by another information content provider.” 47 U.S.C. § 230(c)(1). Section 230(c)(1)

immunity extends to service providers’ activities where they moderating third-party content, such

as “reviewing, editing, and deciding whether to publish or to withdraw from publication third

party content.” Barnes v. Yahoo, 570 F.3d 1096, 1102 (9th Cir. 2009). Thus, “the CDA protects

from liability (1) a provider of an interactive computer service (2) whom a plaintiff seeks to treat

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

Brittain v. Twitter, Inc., No. 19-CV-00114-YGR, 2019 WL 2423375, at *2 (N.D. Cal. June 10,

2019) (citing Barnes, 570 F.3d at 1100).

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Each of these requirements is met here. First, Twitter is a “provider ... of an interactive

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computer service” under the CDA. See 47 U.S.C. § 230(f)(2); Dyroff v. Ultimate Software Grp.,

Inc., 934 F.3d 1093,1097 (9th Cir. 2019) (finding the “prototypical” example is an “online

messaging board”); see also Yuksel v. Twitter, Inc., No. 22-CV-05415-TSH, 2022 WL 16748612,

at *3 (N.D. Cal. Nov. 7, 2022) (collecting cases).

Second, Plaintiff seeks to hold Twitter liable for decisions regarding “information provided

by another information content provider”—that is, information he and the third-party user, rather

than Twitter, provided. Plaintiffs argument Twitter is itself “an information content provider” of

the third-party account holder’s content within the meaning of Section 230(f)(3) is misplaced.

(Dkt. No. 53 at 21-22.) Section 230(f)(3) defines “information content provider” as “any person

or entity that is responsible, in whole or in part, for the creation or development of information

provided through the Internet or any other interactive computer service.” Plaintiff appears to

argue Twitter’s placement of information in “social media feeds” renders it an information content

provider. Not so. “[Proliferation and dissemination of content does not equal creation or

development of content.” Kimzey v. Yelp! Inc., 836 F.3d 1263, 1271 (9th Cir. 2016); see also Fair

Hous. Council ofSan Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157, 1174 (9th Cir.

2008) (finding Section 230 immunity applies where the interactive computer service provider “is

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not responsible, in whole or in part, for the development of th[e] content, which comes entirely

from subscribers and is passively displayed by [the interactive computer service provider].”).

Third and finally, while it is difficult to discern Plaintiffs precise legal claims from his

115-page amended complaint, all his claims relate to the suspension of his account and the alleged

failure to suspend the third-party user’s account, whether they are styled as breach of contract, tort,

or fraud claims. “[W]hat matters is not the name of the cause of action—defamation versus

negligence versus intentional infliction of emotional distress—what matters is whether the cause

of action inherently requires the court to treat the defendant as the ‘publisher or speaker’ of

content provided by another.” Barnes, 570 F.3d 1096,1101-02. All of Plaintiff s claims seek to

treat Twitter as a publisher. Roommates.Com, 521 F.3d at 1170-71 (“any activity that can be

boiled down to deciding whether to exclude material that third parties seek to post online is

perforce immune under section 230.”).

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Plaintiffs argument “CDA 230 carries no relevance” because Twitter breached their

contract is unavailing. There is no exception under Section 230 for breach of contract claims. See

47 U.S.C. § 230(e). Courts routinely hold Section 230 immunizes platforms from contract claims,

where, as here, they seek to impose liability for protected publishing activity. See, e.g., King v.

Facebook, Inc., 845 F. App’x 691, 692 (9th Cir. 2021) (affirming dismissal of pro se plaintiffs

contract claim based on, among other things, Facebook’s suspension of her user account, because

‘“any activity that can be boiled down to deciding whether to exclude material that third parties

seek to post online is perforce immune under section 230’”) (quoting Roommates, 521 F.3d at

1170-71); Murphy v. Twitter, Inc., 60 Cal. App. 5th 12, 28 (2021) (“many [courts] have concluded

that [contract] claims were barred [by Section 230] because the plaintiffs cause of action sought

to treat the defendant as a publisher or speaker of user generated content”) (collecting cases).

To the extent Plaintiff alleges claims under 18 U.S.C. §§ 2252, 2252A, 2257 related to

Twitter’s alleged failure to investigate the third-party Twitter user for possible child sex

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exploitation, such claims are still barred by Section 230. Although Section 230(e)(1) provides a

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carve-out from its protections for federal criminal prosecutions, 47 U.S.C. § 230(e)(1), it does not

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provide any exception from Section 230 immunity for civil claims premised upon federal criminal

statutes—including Plaintiffs Sections 2252, 2252A, 2257 claims. See Gonzalez v. Google LLC,

2 F.4th 871, 890 (9th Cir. 2021), rev’d on other grounds by Twitter, Inc. v. Taamneh, 143 S. Ct.

1206, 1209 (2023).

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Accordingly, Twitter is immune under Section 230(c)(1) from Plaintiffs claims arising

from Twitter’s decisions regarding suspension of his account and its decisions regarding the third-

party user’s account.3

B. Failure to State a Claim

Even if Section 230 did not bar Plaintiffs claims, his complaint fails to state a plausible

claim.

3 The Court declines to consider Twitter’s First Amendment immunity argument as Plaintiffs

claims fails for multiple other reasons as set forth in this Order.

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1) Breach of Contract

Plaintiffs breach of contract claim appears predicated on four theories: (1) Twitter’s

failure to suspend the third-party account holder despite his alleged breach of Twitter’s Financial

Scam and Platform Manipulation and Spam policies; (2) Twitter’s breach of its Terms of Service

by suspending his account and denying his appeals seeking reinstatement of his account; (3)

Twitter’s breach of its Child Exploitation Policy; and (4) Twitter’s breach of its Abusive Behavior

Policy by aiding HIV spread. None of these theories state a viable breach of contract claim.

To state a claim for breach of contract under California law, Plaintiff must plead facts

establishing the following elements: “(1) existence of the contract; (2) plaintiffs performance or

excuse for nonperformance; (3) defendant’s breach; and (4) damages to plaintiff as a result of the

breach.” CDF Firefighters v. Maldonado, 158 Cal.App.4th 1226, 1239 (2008).

To the extent Plaintiffs breach of contract claim is predicated on Twitter’s suspension of

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and refusal to reinstate his account, this claim fails because Twitter’s Terms of Service provide

“[w]e may suspend or terminate your accounts or cease providing you with all or part of the

Services at any time for any reason.” (Dkt. No. 42-2 (Ex. B) at 5; Dkt. No. 42-3 (Ex. C) at 9.)

That is, under the express terms of the Terms of Service, Twitter had the contractual right to

terminate Plaintiffs account for any reason. See Yuksel, 2022 WL 16748612, at *5 (“Twitter had

the contractual right under the Terms to suspend Yuksel’s account, and his breach of contract

claim therefore fails.”); Murphy, 60 Cal. App. 5th at 35 (holding breach of contract claim

“necessarily fails ... because Twitter’s terms of service expressly state that they reserve the right to

‘suspend or terminate [users’] accounts ... for any or no reason’ without liability”).

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As to Twitter’s alleged breach of its various policies, Plaintiff has not alleged facts that

plausibly support an inference these policies constitute a contract between Plaintiff and Twitter,

and even if he could do so, the policies do not require Twitter to perform any particular action;

that is, there is again no breach of a contract. For example, Twitter’s Financial Scam, Abusive

Behavior, and Platform Manipulation and Spam policies do not require Twitter to suspend users

suspected of violating the terms of the policies. The Platform Manipulation and Spam Policy

provides “[t]he consequences for violating this policy depend on the severity of the violation as

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well as any previous history of violations” and lists various actions Twitter “may take.” (Dkt. No.

42-5 (Ex. E) at 9.) The Financial Scam Policy and Abusive Behavior Policy includes the same

and/or similar language. (Dkt. No. 42-6 (Ex. F) at 5 (same language); Dkt. No. 42-4 (Ex. D) at 6

(“When determining the penalty for violating this policy, we consider a number of factors

including, but not limited to, the severity of the violation and an individual’s previous record of

rule violations and listing “potential enforcement options”).) Plaintiff also has not plausibly

alleged a breach of Twitter’s Child Sexual Exploitation Policy with his allegation he reported the

third-party user’s posting of “‘cruising videos’ where he had public sex with college students on

campuses, failing to verify their age, who may very well be under 18.” (Dkt. No. 34 at 19.) The

Child Sexual Exploitation Policy does not require Twitter to suspend users accused of violating

the policy. (Dkt. No. 42-7 at 5-6.) Thus, Plaintiff “has not pointed to any contractual provisions”

which “imposed a duty on Twitter to suspend offending accounts.” Morton v. Twitter, Inc., No.

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CV 20-10434-GW-JEMX, 2021 WL 1181753, at *5 (C.D. Cal. Feb. 19, 2021).

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damages based on Twitter’s alleged contractual breaches.

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Finally, while Plaintiff seeks millions of dollars in damages, he does not allege any actual

Accordingly, Plaintiffs breach of contract claim fails to state “enough facts to state a claim

to relief that is plausible on its face,” BellAtl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), and

does not “plead factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

2) Fraud

Plaintiff alleges Twitter’s “financial scam policy and the scam portion of the platform

manipulation and spam policy are FRAUDULENT, where they NEVER intend to enforce them.”

(Dkt. No. 34 at 11-12.) He appears to allege that because Twitter did not suspend the third-party

account holder for violation of these policies, Twitter never enforces the policies. These

allegations fail to state a claim for fraud. See Cadlo v. Owens-Illinois, Inc., 125 Cal. App. 4th 513,

519 (2004), as modified (Dec. 30, 2004) (“elements of a cause of action for fraud are: (1) a

misrepresentation, which includes a concealment or nondisclosure; (2) knowledge of the falsity of

the misrepresentation, i.e., scienter; (3) intent to induce reliance on the misrepresentation; (4)

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justifiable reliance; and (5) resulting damages.”) (cleaned up). As discussed above, these policies

do not require Twitter to take any particular action, and as such, Plaintiff has not identified a

misrepresentation on which he reasonably relied.

3) Intentional Infliction of Emotional Distress (IIED) and Assault Claims

Plaintiffs IIED and assault claims are predicated on his “risk of contacting [sic] the virus

they helped and facilitated for spread. The IIED already included the emotion of fear from their

conduct, and assault is more about the risk of contacting [sic] the virus and the risks of physical

health issues from it.” (Dkt. No. 34 at 58.) The elements of an IIED claim are: (1) extreme and

outrageous conduct by the defendant with the intention of causing, or reckless disregard of the

probability of causing, emotional distress; (2) the plaintiffs suffering severe or extreme emotional

distress; and (3) actual and proximate causation of the emotional distress by the defendant's

outrageous conduct. Corales v. Bennett, 567 F.3d 554, 571 (9th Cir. 2009) (internal citation

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omitted). Plaintiff has not identified any conduct by Twitter which gives rise to his IIED claim

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beyond alleging Twitter did not suspend the third-party user’s account. Conduct is outrageous if it

is so extreme as to exceed all bounds of usually tolerated in a civilized community. Id. at 571.

Twitter’s alleged conduct does not plausibly satisfy this standard.

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Likewise, Plaintiffs allegations regarding his risk of contracting HIV because the third-

party account holder’s account has not been suspended fail to state a claim for assault. See Brooks

v. United States, 29 F.Supp.2d 613, 617 (N.D.Cal.1998) (stating the elements of assault are: “(1)

that defendant intended to cause harmful or offensive contact, or the imminent apprehension of

such contact, and (2) that plaintiff was put in imminent apprehension of such contact.”) (citing

Restatement (Second) of Torts § 21).

4) Defamation

Plaintiff alleges Twitter defamed him because his Twitter account states “Account

suspended Twitter suspends accounts that violate the Twitter Rules. This page is accessible to

anyone without logging in to twitter.” (Dkt. No. 34 at 71.) Under California law, a plaintiff

bringing a defamation claim must establish: “(a) a publication that is (b) false, (c) defamatory, and

(d) unprivileged, and that (e) has a natural tendency to injure or that causes special damage.” Taus

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v. Loftus, 40 Cal. 4th 683, 720 (2007) (quotation marks and citation omitted). Plaintiffs

allegations fail to satisfy any of these elements—he has not alleged facts that plausibly support an

inference Twitter published a false and defamatory statement about him.

5) Intrusion of Privacy

While Plaintiff references “intrusion of privacy” in his amended complaint, he does not

explain the basis for this claim. (Dkt. No. 34 at 4, 57, 59, 70, 106.) “The common law cause of

action for invasion of privacy based upon intrusion has two elements: (1) intentional intrusion into

a private place, conversation or matter, (2) in a manner highly offensive to a reasonable person.”

Marich v. MGMZUA Telecommunications, Inc., 113 Cal. App. 4th 415, 421 (2003) (cleaned up).

Plaintiff has not alleged any conduct by Twitter which satisfies either element. Plaintiff also has

not responded to Twitter’s motion to dismiss this claim for failure to state a claim.

“Where a party fails to address arguments against a claim raised in a motion to dismiss, the claims

are abandoned and dismissal is appropriate.” Shull v. Ocwen Loan Serv., LLC, 2014 WL 1404877,

*2 (S.D. Cal. Apr. 10, 2014) (collecting cases); see also Walsh v. Nev. Dep’t of Human Res., 471

F.3d 1033, 1037 (9th Cir. 2006) (where opposition to motion to dismiss failed to address

arguments in motion to dismiss, the plaintiff failed to demonstrate a continuing interest in

pursuing a claim for relief and it was “effectively abandoned” and could not be raised on appeal).

6) Criminal Claims

To the extent Plaintiff alleges claims under 18 U.S.C. §§ 2252, 2252A, 2257 related to

Twitter’s alleged failure to investigate the third-party Twitter user for possible child sex

exploitation, Plaintiff lacks standing to bring a civil claim under 18 U.S.C §§ 2252 and 2252A.

See 18 U.S.C. § 2255 (authorizing a “person who, while a minor, was a victim of a violation of

section... 2252, 2252A” “and who suffers personal injury as a result of such violation” to bring a

civil claim). Further, there is no private right of action under Section 2257. See Cent. Bank of

Denver, N.A. v. First Interstate Bank ofDenver, N.A., 511 U.S. 164, 190 (1994) (refusing to “infer

a private right of action from ‘a bare criminal statute.’”); Ventura Content, Ltd. v. Motherless, Inc.,

No. 2:ll-CV-5912-SVW-FMO, 2013 WL 11237204, at *16, n.12 (C.D. Cal. July 3, 2013)

(“Although Section 2257 is a federal statute, it does not create a private right of action.”), aff d,

Case 3:23-cv-00980-JSC

Document 55

Filed 08/23/23

Page 12 of 13

885 F.3d 597 (9th Cir. 2018).

7) UCL

The nature of Plaintiff s UCL claim is unclear. To state a claim under the UCL, a plaintiff

must allege an “unlawful, unfair, or fraudulent business act or practice” or “unfair, deceptive,

untrue or misleading advertising.” Cal. Bus. & Prof. Code § 17200. To succeed on a UCL claim

under any of these theories, a plaintiff must establish the defendant engaged in one of the practices

the statute prohibits and, as a result of the conduct, he or she suffered actual injury. Marolda v.

Symantec Corp., 672 F.Supp.2d 992, 1003 (N.D. Cal. 2009).

Plaintiffs claim fails as a threshold matter because he has not adequately alleged standing.

“While the substantive reach of [the UCL] remains expansive,” to establish standing to enforce the

UCL’s provisions, a plaintiff must “(1) establish a loss or deprivation of money or property

sufficient to qualify as injury in fact, i.e., economic injury, and (2) show that that economic injury

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was the result of, i.e., caused by, the unfair business practice or false advertising that is the

gravamen of the claim.” Kwikset Corp. v. Superior Ct., 51 Cal. 4th 310, 322 (2011) (emphasis in

original); see also Cal. Bus. & Prof. Code § 17204 (“Actions for relief pursuant to this chapter

shall be prosecuted exclusively in a court of competent jurisdiction ... by a person who has

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suffered an injury in fact and has lost money or property as a result of the unfair competition.”).

Even if this were not the case, Plaintiff has not adequately pled a UCL claim—it is unclear

if the claim is brought under the unfair, fraudulent, or unlawful prongs. To the extent it is brought

under the unlawful or fraudulent prongs, the claim necessary fails because the underlying claims

of unlawful conduct and fraud all fail to state a claim. See Riley v. Caliber Home Loans, Inc., No.

21-55909, 2022 WL 2072655, at *2 (9th Cir. June 9, 2022) (citing Krantz v. BT Visual Images,

L.L.C., 89 Cal. App. 4th 164, 178 (2001), as modified (May 22, 2001) (holding a UCL claim

stands or falls “depending on the fate of the antecedent substantive causes of action”)). Plaintiff

also has not alleged any unfair conduct by Twitter sufficient to plead a claim under the unfair

prong. See Warren v. PNC BankNat’l Ass’n, No. 22-CV-07875-WHO, 2023 WL 3182952, at *10

(N.D. Cal. Apr. 30, 2023) (“[t]he ‘unfair’ prong requires proving either: (1) the public policy

which is a predicate to a consumer unfair competition action is tethered to specific constitutional,

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Case 3:23-cv-00980-JSC

Document 55

Filed 08/23/23

Page 13 of 13

statutory or regulatory provisions, or (2) that the challenged business practice is immoral,

unethical, oppressive, unscrupulous, or substantially injurious to consumers.”) (cleaned up).

Accordingly, Plaintiffs claims fail to state a claim on which relief could be granted and are

subject to dismissal even if Twitter were not immune from suit under Section 230 of the CDA.

Iqbal, 556 U.S. at 678 (“A claim has facial plausibility when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.”).

CONCLUSION

For the reasons stated above, Twitter’s motion to dismiss Plaintiffs Amended Complaint

is GRANTED. Because amendment would be futile, dismissal is with prejudice. Leadsinger, Inc.

v. BMG Music Pub., 512 F.3d 522, 532 (9th Cir. 2008).

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This Order disposes of Docket No. 40.

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IT IS SO ORDERED.

Dated: August 23, 2023

United States District Judge

Case 3:23-cv-00980-JSC Document 8 Filed 03/13/23 Page 1 of 1

■i

UNITED STATES DISTRICT COURT

. NORTHERN DISTRICT OF CALIFORNIA

TAIMING ZHANG,

Plaintiff,

ORDER GRANTING IN FORMA

PAUPERIS APPLICATION

Case No. 23-cv-00980-JSC

TWITTER INC.,

Re: Dkt. No. 2

Defendant.

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Having considered the application and complaint, the Court GRANTS Plaintiffs application. The

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Clerk of Court shall issue the summons. Further, the U.S. Marshal or the Clerk’s Office for the

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Northern District of California serve, without prepayment of fees, a copy of the complaint, any

amendments, attachments, scheduling orders and other documents specified by the Clerk,

plaintiffs affidavit and this order upon the defendant(s).

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Before the Court is Plaintiffs Application to Proceed In Forma Pauperis. (Dkt. No. 2.)

As Plaintiff is proceeding without counsel, the Court directs his attention to the Handbook

for Pro Se Litigants, which is available along with further information for the parties on the

Court’s website located at http://cand.uscourts.gov/proselitigants. Plaintiff may also contact the

Legal Help Center via telephone: (415)-782-8982, or email: fedpro@sfbar.org for free assistance

regarding his claims.

IT IS SO ORDERED.

Dated: March 13, 2023

tu.

JAC^UEMNE SCOTT CORLEY U

United States District Judge

Statutes involved

■i

47 U.S. Code § 230 (c) (1) No provider or user of an interactive computer service shall be treated as

the publisher or speaker of any information provided by another information content provider.

The fifth amendment to the US Constitution says (things not relevant to this suit

redacted): No person shall be,

nor be deprived of life, liberty, or property,

without due process of law,....

Section 1 of the fourteenth amendment to the US Constitution says (things not

relevant to this suit redacted): No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens of the United States: nor

shall any State deprive any person of life, liberty, or property, without due

process of law; nor deny to any person within its jurisdiction the equal

protection of the laws.

Seventh Amendment In Suits at common law, where the value in controversy shall

exceed twenty dollars, the right of trial by jury shall be preserved, and no fact

tried by a jury, shall be otherwise re-examined in any Court of the United

States, than according to the rules of the common law.

Eighth Amendment Excessive bail shall not be required, nor excessive fines

imposed, nor cruel and unusual punishments inflicted.

1st amendment Congress shall make no law respecting an establishment of religion, or

prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press;

or the right of the people peaceably to assemble, and to petition the Government for a

redress of grievances.

Additional material

from this filing is

available in the

Clerk's Office.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.