Case 2:21-cv-01767-FMO-MAA Document 47 Filed 02/14/22 Page 1 of 8 Page ID #:519
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`Case No.
`Title
`
`CIVIL MINUTES - GENERAL
`CV 21-1767 FMO (MAAx)
`Henk Meyers, et al. v. Alphabet, Inc., et al.
`
`Date
`
`February 14, 2022
`
`Fernando M. Olguin, United States District Judge
`Present: The Honorable
`None
`None
`Gabriela Garcia
`Tape No.
`Court Reporter / Recorder
`Deputy Clerk
`Attorney Present for Defendant(s):
`Attorney Present for Plaintiff(s):
`None Present
`None Present
`(In Chambers) Order Re: Pending Motions
`
`Proceedings:
`
`Having reviewed defendants’ Motion to Dismiss the First Amended Complaint, Transfer
`Venue, and/or Strike Class Allegations (Dkt. 32, “Motion”) and Motion for a Stay of Discovery (Dkt.
`43, “Stay Motion”), the court finds that oral argument is not necessary to resolve the motions, see
`Fed. R. Civ. P. 78(b); Local Rule 7-15; Willis v. Pac. Mar. Ass’n, 244 F.3d 675, 684 n. 2 (9th Cir.
`2001), and concludes as follows.
`
`BACKGROUND1
`
`Plaintiffs Henk Meyers (“Meyers”) and Glenn Ginoza (“Ginoza”) (collectively, “plaintiffs”)
`filed the operative First Amended Class Action Complaint (Dkt. 23, “FAC”) against Alphabet, Inc.
`(“Alphabet”), Google, LLC (“GLLC”), Google Payment Corp. (“GPC”), and Google Arizona LLC
`(“GAZ”) (collectively, “defendants” or “Google”), (id. at ¶¶ 11-16), alleging that Google invalidates
`Google Play2 gift cards, in violation of California law. (See Dkt. 23, FAC at ¶ 1). Specifically,
`plaintiffs allege that Google sells “gift cards to users in over 875,000 retail locations” and “markets
`Google Play gift cards as a cash equivalent redeemable toward one’s Google Play balance” and
`as “easy to redeem[,]” “never [e]xpire[,]” and can be used to “easily manage” spending on Google
`Play content. (Id. at ¶¶ 2, 27-28). However, contrary to Google’s marketing, plaintiffs allege that
`“Google has erected barriers which can make card redemption difficult or even impossible.” (Id.
`at ¶ 3). For example, in certain instances, when a cardholder attempts to redeem a gift card, he
`or she is “directed to fill out a form requesting detailed information about when and where the gift
`card was purchased, along with receipts documenting the original purchase.” (Id. at ¶ 4). And
`even when consumers “supply all of the requested information, Google sometimes still refuses to
`
`1 Capitalization, quotation and alteration marks, and emphasis in record citations may be
`altered without notation.
`
`2 “Google Play is Google’s software application (a/k/a ‘app’) store, which allows users to
`download applications, electronic books, music” and other items to their mobile and computer
`devices. (Dkt. 23, FAC at ¶ 2).
`CV-90 (06/04)
`
`CIVIL MINUTES - GENERAL
`
`Page 1 of 8
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`

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`Case 2:21-cv-01767-FMO-MAA Document 47 Filed 02/14/22 Page 2 of 8 Page ID #:520
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`Case No.
`Title
`
`CIVIL MINUTES - GENERAL
`CV 21-1767 FMO (MAAx)
`Henk Meyers, et al. v. Alphabet, Inc., et al.
`
`Date
`
`February 14, 2022
`
`redeem or provide refunds for gift cards without explanation.” (Id.). Plaintiffs believe Google’s
`failure to honor certain Google Play gift cards is due to “an algorithm Google uses to detect
`suspicious gift card activity and redemptions[.]” (Id. at ¶ 5). The algorithm “snares bona fide
`Google Play gift card purchasers and holders in its wide net, effectively invalidating otherwise valid
`gift cards.” (Id.) (footnote omitted).
`
`Plaintiffs seek to represent a class comprised of “[a]ll bona fide Google Play gift card
`purchasers and holders who were denied redemption or replacement of their gift cards in the four-
`years preceding this suit to the present.” (Dkt. 23, FAC at ¶ 40). Plaintiffs assert claims for: (1)
`violation of California’s Business and Professions Code, Cal. Bus. & Prof. Code §§ 17200, et seq.;
`(2) breach of contract; and (3) breach of the implied covenant of good faith and fair dealing. (See
`id. at ¶¶ 53-72).
`
`
`
`DISCUSSION
`
`I.
`
`FORUM SELECTION CLAUSE.
`
`Section 1404(a) of Title 28 of the United States Code 3 provides that “[f]or the convenience
`of parties and witnesses, in the interest of justice, a district court may transfer any civil action to
`any other district or division where it might have been brought[.]” 28 U.S.C. § 1404(a). Section
`1404(a) “does not concern the issue whether and where an action may be properly litigated. It
`relates solely to the question where, among two or more proper forums, the matter should be
`litigated to best serve the interests of judicial economy and convenience of the parties.” Williams
`v. WinCo Foods, LLC, 2013 WL 211246, *2 (E.D. Cal. 2013).
`
`The court weighs multiple factors to determine whether a transfer of venue serves the
`convenience of the parties and witnesses and promotes the interests of justice. See Jones v.
`GNC Franchising, Inc., 211 F.3d 495, 498-99 (9th Cir. 2000); Lopez v. Chertoff, 2007 WL
`2113494, *2 (N.D. Cal. 2007). “The presence of a forum-selection clause, however, changes the
`analysis.” Karl v. Zimmer Biomet Holdings, Inc., 2018 WL 5809428, *1 (N.D. Cal. 2018). A
`forum-selection clause should be enforced unless the party challenging enforcement of the
`provision can show it is unreasonable. See M/S Bremen v. Zapata Offshore Co., 407 U.S. 1, 10,
`92 S.Ct. 1907, 1913 (1972). Before evaluating a forum selection clause, the court must first
`determine whether there is a “contractually valid forum-selection clause[.]” Atl. Marine Constr.
`Co., Inc. v. the U.S. Dist. Ct. for W. Dist. of Texas, 571 U.S. 49, 62 n. 5, 134 S.Ct. 568, 581 n. 5
`(2013); see Moretti v. Hertz Corp., 2014 WL 1410432, *2 (N.D. Cal. 2014) (noting that before
`engaging in analysis of forum selection clause pursuant to Atlantic Marine, a “[c]ourt must first
`determine whether a valid forum-selection clause exists within the subject contract”). The party
`seeking to enforce the forum-selection clause “bear[s] the burden of demonstrating the existence
`of a contract and the inclusion of the forum selection clause in that contract.” Smith v. Nerium Int’l,
`
`3 All statutory citations are to Title 28 of the United States Code unless otherwise indicated.
`CIVIL MINUTES - GENERAL
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`Page 2 of 8
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`

`

`Case 2:21-cv-01767-FMO-MAA Document 47 Filed 02/14/22 Page 3 of 8 Page ID #:521
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`Case No.
`Title
`
`CIVIL MINUTES - GENERAL
`CV 21-1767 FMO (MAAx)
`Henk Meyers, et al. v. Alphabet, Inc., et al.
`
`LLC, 2019 WL 3110027, *10 (C.D. Cal. 2019).
`
`Date
`
`February 14, 2022
`
`Google Play gift cards are governed by the Google Play Gift Card and Prepaid Play
`Balance Terms of Service (“Gift Card TOS”). (See Dkt. 32, Motion at 4-5); (Dkt. 32-4, Declaration
`of Joseph Mills in Support of Defendants’ Motion to Dismiss [] (“Mills Decl.”) at ¶ 5). A Google
`Play gift card holder or purchaser “must click to agree to the Gift Card TOS in order to redeem (or
`even attempt to redeem) a Google Play gift card.” (Dkt. 32-4, Mills Decl. at ¶ 6). More specifically,
`“[w]hen attempting to redeem a Google Play gift card, on either a desktop or mobile device, the
`holder or purchaser of the gift card such as the Plaintiffs must type in or scan the gift card code
`and click a ‘Redeem’ button.” (Dkt. 32-4, Mills Decl. at ¶ 7). Just above the Redeem button is text
`stating that, “[b]y clicking Redeem, you agree to the Gift Card & Promotional Code Terms and
`Conditions, as applicable.” (Id.). “The phrase ‘Terms and Conditions’ is in blue font while the
`other text is in black font, and the phrase is a hyperlink to the Gift Card TOS.” (Id.). The Gift Card
`TOS states that its “terms incorporate and are subject to the Google Play Terms of Service[,]”
`(“Google Play TOS”) and provides a hyperlink to the Google Play TOS. (Dkt. 32-4, Mills Decl. at
`¶ 11); (Dkt. 32-5, Exh. C (Google Gift Card TOS) at ¶ 7). “A shortened version of the Gift Card
`TOS, which includes a web address to the full Gift Card TOS available online, is printed on the
`back of every Google Play gift card that is bought at a brick-and-mortar retail location.” (Dkt. 32-4,
`Mills Decl. at ¶ 5).
`
`The Google Play TOS, (see Dkt. 32-4, Mills Decl. at ¶ 11); (Dkt. 32-6, Exh. D (Google Play
`TOS)), in turn, states that use of Google Play and content are subject to the Google Play TOS
`“and the Google Terms of Service.” (“Google TOS”). (Dkt. 32-4, Mills Decl. at ¶ 12); (Dkt. 32-6,
`Exh. D (Google Play TOS) at ¶ 1). Clicking on the hyperlink to the Google TOS takes the user to
`the Google TOS, in which the forum selection clause is found toward the end of the document,
`under the heading, “Settling disputes, governing law, and courts[.]” (Dkt. 32-7, Exh. E (Google
`TOS) at ECF 277).
`
`Google contends that plaintiffs are bound by the forum selection clause contained in the
`Google TOS because the “Gift Card TOS incorporates by reference the Google TOS containing
`the forum selection clause.” (Dkt. 32, Motion at 9). More specifically, it notes that the Gift Card
`TOS “clearly states that its ‘terms incorporate and are subject to the Google Play Terms of
`Service[,]’” and “provides a hyperlink – in blue font to contrast with other text – to the incorporated
`Google Play TOS.” (Id.). The Google Play TOS states that it is subject to the Google TOS, which
`is hyperlinked in blue font. (Id.). As such, Google reasons, plaintiffs are subject to the forum
`selection clause contained in the Google TOS. Plaintiffs contend that they did not assent to the
`forum selection clause at issue. (See Dkt. 33, Plaintiffs’ Opposition to Defendants’ Motion to
`Dismiss [] (“Opp.”) at 8-10).
`
`“While new commerce on the Internet has exposed courts to many new situations, it has
`not fundamentally changed the principles of contract.” Nguyen v. Barnes & Noble Inc., 763 F.3d
`1171, 1175 (9th Cir. 2014). “One such principle is the requirement that ‘[m]utual manifestation of
`assent, whether by written or spoken word or by conduct, is the touchstone of contract.’” Id. “‘[A]n
`CIVIL MINUTES - GENERAL
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`

`

`Case 2:21-cv-01767-FMO-MAA Document 47 Filed 02/14/22 Page 4 of 8 Page ID #:522
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`Case No.
`Title
`
`CIVIL MINUTES - GENERAL
`CV 21-1767 FMO (MAAx)
`Henk Meyers, et al. v. Alphabet, Inc., et al.
`
`Date
`
`February 14, 2022
`
`offeree, knowing that an offer has been made to him but not knowing all of its terms, may be held
`to have accepted, by his conduct, whatever terms the offer contains.’” In re Holl, 925 F.3d 1076,
`1083 (9th Cir. 2019) (quoting Windsor Mills, Inc. v. Collins & Aikman Corp., 25 Cal.App.3d 987,
`992 (1972)). “Yet, ‘an offeree, regardless of apparent manifestation of his consent, is not bound
`by inconspicuous contractual provisions of which he was unaware, contained in a document
`whose contractual nature is not obvious.’” Id. (quoting Windsor Mills, 25 Cal.App.3d at 992).
`However, “[t]here is no special rule . . . that an offeror of an adhesive consumer contract
`specifically highlight or otherwise bring [a forum selection] clause to the attention of the consumer
`to render the clause enforceable.” Id. (citing Sanchez v. Valencia Holding Co., 61 Cal.4th 899,
`914 (2015)).
`
`Here, the court finds that Google has failed to show that plaintiffs assented to the forum
`selection clause. There is no evidence that plaintiffs had actual or constructive notice of the
`clause at the time they purchased their gift cards. See Smith, 2019 WL 3110027, at *10 (noting
`that defendants “bear[] the burden of demonstrating the existence of a contract and the inclusion
`of the forum selection clause in that contract”). According to Google, “[w]hen attempting to
`redeem a Google Play gift card, on either a desktop or mobile device, the holder or purchaser of
`the gift card such as the Plaintiffs must type in or scan the gift card code and click a ‘Redeem’
`button[,]” (Dkt. 32-4, Mills Decl. at ¶ 7), and just above the Redeem button, is text stating: “[b]y
`clicking Redeem, you agree to the Gift Card & Promotional Code Terms and Conditions, as
`applicable.” (Id.). However, Google fails to meaningfully address the undisputed fact that plaintiffs
`purchased their Google Play gift cards at brick-and-mortar retail establishments, i.e., Meyers
`purchased a $50 gift card and a $10 gift card on two separate dates at two different Speedway
`stores, while Ginoza purchased a $100 gift card from a CVS. (See Dkt. 23, FAC at ¶¶ 11-12);
`(see also Dkt. 32, Motion at 4) (“Google Play gift cards can be purchased at over 875,000 retail
`locations.”). There is no dispute that, prior to the point of purchase, plaintiffs could not have
`clicked the “Redeem” button, (see Dkt. 32-4, Mills Decl. at ¶ 7) (“When attempting to redeem a
`Google Play gift card, on either a desktop or mobile device, the holder or purchaser of the gift card
`. . . must type in or scan the gift card code and click a ‘Redeem’ button.”) (emphasis added) and,
`therefore, could not have agreed to abide by the Gift Card TOS at that point.4 (See, e.g., Dkt. 32,
`Motion at 7) (“Plaintiffs clicked to accept the Gift Card TOS[] when they attempted to redeem their
`Google Play gift cards”).
`
`Google argues that under California law, “parties may validly incorporate by reference into
`their contract the terms of another document” provided the “reference to the incorporated
`document [is] clear and unequivocal and the terms of the incorporated document [are] known or
`easily available to the contracting parties.” (Dkt. 32, Motion at 9) (quoting Slaught v. Bencomo
`
`4 It is only after a consumer has shelled out money for a gift card that he or she is
`presented with the Redeem button. At that point, having paid for the card, the consumer can
`either agree to whatever terms are presented or forego the money spent on the card. This strikes
`the court as wholly unfair to consumers who purchase gift cards at retail establishments.
`CIVIL MINUTES - GENERAL
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`

`

`Case 2:21-cv-01767-FMO-MAA Document 47 Filed 02/14/22 Page 5 of 8 Page ID #:523
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`Case No.
`Title
`
`CIVIL MINUTES - GENERAL
`CV 21-1767 FMO (MAAx)
`Henk Meyers, et al. v. Alphabet, Inc., et al.
`
`Date
`
`February 14, 2022
`
`Roofing Co., 25 Cal.App.4th 744, 748 (1994). Here, however, Google has failed to show that
`Google Play gift cards purchased at retail establishments include a “clear and unequivocal”
`reference to the Google Gift Card TOS, as Google did not provide the language included with the
`gift cards.5 Instead, Google merely states that “[a] shortened version of the Gift Card TOS, which
`includes a web address to the full Gift Card TOS available online, is printed on the back of every
`Google Play gift card that is bought at a brick-and-mortar retail location.” (Dkt. 32-4, Mills Decl.
`at ¶ 5).
`
`Even if the Google Play gift cards that plaintiffs purchased referred – in a conspicuous
`manner – to the Gift Card TOS, plaintiffs still would not be bound by the forum selection clause.
`As an initial matter, the language above the Redeem button simply states that, “[b]y clicking
`Redeem, you agree to the Gift Card & Promotional Code Terms and Conditions, as applicable.”6
`(Dkt. 32-4, Mills Decl. at ¶ 7). This statement would not put a reasonable consumer on notice that
`
`5 Nor did Google describe or provide the font size, the color of the terms and conditions,
`the website address found on the gift cards, or even any images of the cards. (See, generally,
`Dkt. 32-4, Mills Decl. at ¶¶ 5-7); (Dkt. 32, Motion at 7-12). Such information might have enabled
`the court to determine whether a reasonable consumer would have been on inquiry notice of the
`forum selection clause. See, e.g., Soliman v. Subway Franchisee Advertising Fund Trust, Ltd.,
`999 F.3d 828, 834-36 (2d Cir. 2021) (applying California law and holding that defendant failed to
`demonstrate that an arbitration provision would have been conspicuous to a reasonably prudent
`consumer because, among other things, defendant failed to provide evidence of the size of the
`advertisement and print, and “the reference to the URL for the website containing [the] terms and
`conditions was not conspicuous in the context of the entire advertisement”); see also In re Holl,
`925 F.3d at 1083 (“[A]n offeree, regardless of apparent manifestation of his consent, is not bound
`by inconspicuous contractual provisions of which he was unaware, contained in a document
`whose contractual nature is not obvious.”); Sellers v. JustAnswer LLC, 73 Cal.App.5th 444, 2021
`WL 6144075, *6 (2021) (“[W]hether the terms appear on a physical piece of paper or a computer
`screen, California law is clear – an offeree, regardless of apparent manifestation of his consent,
`is not bound by inconspicuous contractual provisions of which he was unaware, contained in a
`document whose contractual nature is not obvious.”) (internal quotation marks omitted). Indeed,
`Google failed to address the fact that this case does not involve a true clickwrap agreement, see
`Nguyen, 763 F.3d at 1175-76 (“Contracts formed on the Internet come primarily in two flavors:
`‘clickwrap’ (or ‘click-through’), in which website users are required to click on an ‘I agree’ box after
`being presented with a list of terms and conditions of use; and ‘browsewrap’ agreements, where
`a website’s terms and conditions of use are generally posted on the website via a hyperlink at the
`bottom of the screen.”), or that the terms of service on the Google Play gift cards purchased at
`retail establishments cannot be considered clickwrap agreements.
`
`6 As noted above, Google did not provide any images of the Google Play Gift Cards sold
`at retail establishments, or screenshots of any sign-in screens. (See, generally, Dkt. 32-4, Mills
`Decl.).
`CV-90 (06/04)
`
`CIVIL MINUTES - GENERAL
`
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`Case 2:21-cv-01767-FMO-MAA Document 47 Filed 02/14/22 Page 6 of 8 Page ID #:524
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`Case No.
`Title
`
`CIVIL MINUTES - GENERAL
`CV 21-1767 FMO (MAAx)
`Henk Meyers, et al. v. Alphabet, Inc., et al.
`
`Date
`
`February 14, 2022
`
`by clicking Redeem, he or she would be agreeing to a forum selection clause found numerous
`hyperlinks away. As plaintiffs note, “the forum selection clause . . . was [contained within a
`document] three hyperlinks away from the point of [] purchase[.]” (Dkt. 33, Plaintiffs’ Opposition
`to Defendants’ Motion to Dismiss [] (“Opp.”) at 9) (emphasis omitted). Indeed, the Gift Card TOS
`contains six hyperlinks, (see Dkt. 32-5, Gift Card TOS), and the Google Play TOS contains an
`additional 19 hyperlinks. (See Dkt. 32-6, Exh. D (Google Play TOS); (Dkt. 32-8, Exh. F (Google
`Play TOS); (Dkt. 33, Opp. at 9-10).
`
`Relying on In re Holl, 925 F.3d 1076, Google contends that agreements requiring “multiple
`steps” are valid, and the fact that “there are multiple hyperlinks in the Gift Card TOS and the
`Google Play TOS does not demonstrate that Google’s forum selection clause in invalid.” (Dkt. 34,
`Reply at 4). However, the Ninth Circuit in In re Holl, was reviewing, via a petition for writ of
`mandamus, a district court order granting a defendant’s motion to compel arbitration based on a
`disputed arbitration provision. See 925 F.3d at 1079. After explaining that “[m]andamus is an
`extraordinary remedy” that is invoked in “only exceptional circumstances amounting to a judicial
`usurpation of power or a clear abuse of discretion[,]” id. at 1082, the Ninth Circuit merely held that
`the district court’s order was “not clearly erroneous as a matter of law[.]” Id. at 1083 (internal
`quotation marks omitted). This decision was far from an endorsement of serial click-through
`agreements. Moreover, the decision involved a true clickwrap agreement where the consumer
`was required to click a separate box affirmatively indicating assent to the hyperlinked agreement
`and terms of service and then click a separate “Continue” button. Id. at 1080 (screenshot image
`of enrollment page). Here, even according to the description provided by Google, a consumer did
`not need to click a box indicating assent to any terms. Rather, assenting was indicated merely
`by the consumer’s attempt to redeem an already-paid-for-gift card by hitting a Redeem button.7
`
`7 As noted above, even after clicking Redeem, the forum selection clause was buried
`several hyperlinks away. Google contends that “[m]ultiple courts have found in similar
`circumstances that Google’s ‘clickwrap’ agreements and the forum selection clauses contained
`or incorporated therein are enforceable.” (Dkt. 32, Motion at 10). However, the cases Google
`cites are inapposite because the plaintiffs either clicked a box affirmatively agreeing to the relevant
`terms and conditions or conceded that they agreed to the forum selection clause at issue. See,
`e.g., Feldman v. Google, Inc., 513 F.Supp.2d 229, 237 (E.D. Pa. 2007) (Plaintiff, a lawyer, “had
`to take affirmative action and click the ‘Yes, I agree to the above terms and conditions’ button in
`order to proceed to the next step. Clicking ‘Continue’ without clicking the ‘Yes’ button would have
`returned the [plaintiff] to the same webpage. If the [plaintiff] did not agree to all of the terms, he
`could not have activated his account, placed ads, or incurred charges.”); Rudgayzer v. Google,
`Inc., 986 F.Supp.2d 151, 154 (E.D.N.Y. 2013), order withdrawn 2014 WL 12676233 (E.D.N.Y.
`2014) (noting that plaintiffs did “not contest that they agreed to the forum-selection clause”); Rojas-
`Lozano v. Google, Inc., 2015 WL 4779245, *2 (D. Mass 2015) (explaining that “the webpage
`require[d] the user to click a box stating ‘I agree to the Google Terms of Service and Privacy
`Policy’ before the user [could] click ‘Next step’ to continue the signup process”).
`CIVIL MINUTES - GENERAL
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`

`Case 2:21-cv-01767-FMO-MAA Document 47 Filed 02/14/22 Page 7 of 8 Page ID #:525
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`Case No.
`Title
`
`CIVIL MINUTES - GENERAL
`CV 21-1767 FMO (MAAx)
`Henk Meyers, et al. v. Alphabet, Inc., et al.
`
`Date
`
`February 14, 2022
`
`Finally, Google contends that plaintiffs are bound by the forum selection clause because
`they previously accepted the Google Play TOS or the Google TOS. (See Dkt. 32, Motion at 10).
`However, Google has not pointed the court to the specific language in those terms of service that
`specifically refers to Google Play gift cards. (See, generally, id.). In any event, Google has failed
`to show how previously agreeing to the Google Play TOS or Google TOS would put a reasonable
`consumer on notice that imbedded terms in those agreements would apply to later-purchased gift
`cards from retail establishments. This is particularly so since Google has failed to provide the
`specific language found on such gift cards or images of the cards.
`
`II.
`
`MOTION TO DISMISS.
`
`Many motions to dismiss can be avoided if the parties confer in good faith (as required by
`Local Rule 7-3), especially for perceived defects in a complaint, answer or counterclaim that could
`be corrected by amendment. See Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052
`(9th Cir. 2003) (where a motion to dismiss is granted, a district court should provide leave to
`amend unless it is clear that the complaint could not be saved by any amendment). Moreover,
`a party has the right to amend the complaint “once as a matter of course[.]” Fed. R. Civ. P.
`15(a)(1). Even after a complaint has been amended or a responsive pleading has been served,
`the Federal Rules of Civil Procedure provide that “[t]he court should freely give leave [to amend]
`when justice so requires.” Fed. R. Civ. P. 15(a)(2). The Ninth Circuit requires that this policy
`favoring amendment be applied with “extreme liberality.” Owens v. Kaiser Found. Health Plan,
`Inc., 244 F.3d 708, 712 (9th Cir. 2001); Morongo Band of Mission Indians v. Rose, 893 F.2d 1074,
`1079 (9th Cir. 1990).
`
`The court will grant Google’s Motion and dismiss plaintiffs’ FAC, (Dkt. 23), with leave to
`amend. In preparing the Second Amended Complaint, plaintiffs shall carefully evaluate the
`contentions set forth in Google’s Motion, particularly as to the contention that Google Play gift
`cards are exempt from the requirements of California’s Gift Certificate Law, Cal. Civ. Code §§
`1749.45, et seq.
`
`CONCLUSION
`
`This Order is not intended for publication. Nor is it intended to be included in or
`submitted to any online service such as Westlaw or Lexis.
`
`Based on the foregoing, IT IS ORDERED THAT:
`
`Defendants’ Motion to Dismiss the First Amended Complaint, Transfer Venue, and/or
`1.
`Strike Class Allegations (Document No. 32) is granted in part and denied in part. The Motion
`is denied as to transfer or dismissal based on the forum selection clause. The Motion is granted
`in all other respects.
`
`2.
`CV-90 (06/04)
`
`The FAC (Document No. 23) is dismissed with leave to amend.
`CIVIL MINUTES - GENERAL
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`

`Case 2:21-cv-01767-FMO-MAA Document 47 Filed 02/14/22 Page 8 of 8 Page ID #:526
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`Case No.
`Title
`
`CIVIL MINUTES - GENERAL
`CV 21-1767 FMO (MAAx)
`Henk Meyers, et al. v. Alphabet, Inc., et al.
`
`Date
`
`February 14, 2022
`
`If plaintiffs still wish to pursue this action, they are granted until March 7, 2022, to
`3.
`file a second amended complaint attempting to cure the deficiencies set forth above as well as the
`other alleged defects outlined in Google’s Motion. The court expects that Google will agree to any
`amendments that will or attempt to cure the alleged defects.
`
`The second amended complaint must be labeled “Second Amended Complaint,” filed
`4.
`in compliance with Local Rule 3-2 and contain the case number assigned to the case. In addition,
`plaintiffs are informed that the court cannot refer to a prior pleading in order to make their Second
`Amended Complaint complete. Local Rule 15-2 requires that an amended pleading be complete
`in and of itself without reference to any prior pleading. This is because, as a general rule, an
`amended pleading supersedes the original pleading. See Ramirez v. Cty. of San Bernardino, 806
`F.3d 1002, 1008 (9th Cir. 2015) (“It is well-established in our circuit that an amended complaint
`supersedes the original, the latter being treated thereafter as non-existent. In other words, the
`original pleading no longer performs any function[.]”) (citations and internal quotation marks
`omitted).
`
`Plaintiffs are cautioned that failure to timely file a Second Amended Complaint shall
`5.
`result in this action being dismissed without prejudice for failure to prosecute and/or failure to
`comply with a court order. See Fed. R. Civ. P. 41(b); Link v. Wabash R.R. Co., 370 U.S. 626,
`629-30, 82 S.Ct. 1386, 1388 (1962).
`
`Defendants shall file their Answer to the Second Amended Complaint or a motion
`6.
`pursuant to Fed. R. Civ. P. 12 no later than March 21, 2022.
`
`In the event defendants wish to file another motion to dismiss, then counsel for the
`7.
`parties shall, on March 14, 2022, at 10:00 a.m.8 meet and confer either in person or via video-
`conference to discuss defendants’ motion to dismiss. Defendants’ motion must include copies of
`all meet and confer letters as well as a declaration that sets forth, in detail, the entire meet and
`confer process (i.e., when and where it took place, how long it lasted and the position of each
`attorney with respect to each disputed issue that will be the subject of the motion). Failure to
`include such a declaration will result in the motion being denied.
`
`8. Defendants’ Motion for a Stay of Discovery (Document No. 43) is denied. (See Dkt.
`39, Court’s Order of August 26, 2021, at 2).
`
`Initials of Preparer
`
`gga
`
`8 Counsel may agree to meet and confer at another time and place without seeking court
`approval for such an agreement.
`CV-90 (06/04)
`
`CIVIL MINUTES - GENERAL
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`Page 8 of 8
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