Case 3:21-cv-09004-CRB Document 64 Filed 12/01/22 Page 1 of 25
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE NORTHERN DISTRICT OF CALIFORNIA
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`MARIE HAMMERLING, et al.,
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`Plaintiffs,
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`v.
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`GOOGLE LLC,
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`Defendant.
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`Case No. 21-cv-09004-CRB
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`ORDER GRANTING MOTION TO
`DISMISS
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`Defendant Google LLC (“Google”) moves to dismiss Plaintiffs Marie Hammerling
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`and Kay Jackson’s amended complaint. For the second time, Plaintiffs allege that Google
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`secretly used their Android smartphones to collect data regarding their use of third-party
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`apps. Plaintiffs allege that, through the collection of this data, Google “gains a wealth of
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`highly personal information about consumers” in order to “gain an unfair advantage
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`against its competitors.” Am. Compl. (dkt. 51) ¶¶ 3, 5. In its prior order, the Court
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`dismissed all of Plaintiffs’ claims against Google. See Hammerling v. Google LLC, No.
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`21-CV-09004-CRB, 2022 WL 2812188 (N.D. Cal. July 18, 2022). Plaintiffs renew those
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`claims in their amended complaint, alleging that Google breached its contract with its
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`customers and violated California’s Unfair Competition Law, the California Constitution,
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`and California fraud and privacy laws. Am. Compl. ¶¶ 119–222. Google again moves to
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`dismiss. Mot. (dkt. 57). Finding this matter suitable for resolution without oral argument
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`pursuant to Civil Local Rule 7-1(b), because Plaintiffs fail to cure the deficiencies outlined
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`in the Court’s prior order, the Court GRANTS Google’s motion to dismiss.
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`I.
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`BACKGROUND
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`In its prior order, the Court found that Plaintiffs had failed to state each of its ten
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`Northern District of California
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`United States District Court
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`Case 3:21-cv-09004-CRB Document 64 Filed 12/01/22 Page 2 of 25
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`claims: (1) common law intrusion upon seclusion; (2) invasion of privacy under the
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`California Constitution; (3) violation of California Civil Code section 1709; (4) violations
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`of the fraud, unlawful, and unfair prongs of California Civil Code section 17200 (“Unfair
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`Competition Law” or “UCL”); (5) violation of California Civil Code section 1750
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`(“California Consumers Legal Remedies Act” or “CLRA”); (6) breach of contract; (7)
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`breach of implied contract; (8) unjust enrichment; (9) relief under the Declaratory
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`Judgment Act; and (10) violation of California Penal Code section 631 (“California’s
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`Invasion of Privacy Act” or “CIPA”). See Hammerling, 2022 WL 2812188. Despite
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`noting that “many of the problems [outlined in the order would] be difficult to cure,” the
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`Court granted Plaintiffs leave to amend. Id. at *18. Plaintiffs amended their complaint,
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`leaving the vast majority of their allegations untouched; those facts are discussed in the
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`Court’s prior order. See Hammerling, 2022 WL 2812188, at *1–2. In their amended
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`complaint, Plaintiffs allege the following additional facts:
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`First, Plaintiffs allege that data about their use of third-party apps provided “unique
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`insights” into their lives; for example, through Hammerling’s use of the Fidelity
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`Investments and Bank of America apps, Google knew where Hammerling “maintained her
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`financial accounts.” Am. Compl. ¶ 18. Through other third-party apps downloaded to her
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`Android smartphone, Google could deduce that Hammerling had a home security system,
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`drove a Mazda, read the New York Times, and was physically active. Id. Similarly,
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`through Jackson’s use of the Joel Osteen, YouVersion Bible, and Bible Trivia apps,
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`Google knew Jackson’s religious beliefs. Id. ¶ 30.
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`Second, Plaintiffs highlight five pieces of specific information collected from
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`Hammerling’s use of third-party apps: (1) she visited the Wish app on March 10, 2021 and
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`viewed a foot massager, and on March 3, 2021 and viewed “womens slippers size 9”; (3)
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`she visited the Groupon app and viewed deals for “78% off Anti-inflammatory Meal
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`subscriptions” on October 13, 2019 and “100% Extra Virgin Coconut Oil” on May 10,
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`2020; and (3) she visited the Picsart Photo & Video Editor app on March 8, 2021. Id. ¶¶
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`19–21. For two of these pieces of data, Plaintiffs included data notices from
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`Hammerling’s Google account, which state that: “This activity was saved to your Google
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`Account because the following settings were on: additional Web & App Activity. You can
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`control these settings here.” Id. ¶¶ 19, 21. When Plaintiffs followed the link in that notice,
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`they allege that the Web & App Activity Activity Control only states that Google will
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`“Save[] your activity on Google sites and apps” and Google’s collection of Hammerling’s
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`third-party app data from Groupon, Wish, and Picsart was in violation of this
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`representation. Id. ¶ 23.1
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`Third, Plaintiffs allege that Hammerling read Google’s Privacy Policy and that she
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`“did not understand this policy to mean (and did not agree) that Google would collect
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`sensitive data from” third-party apps she downloaded to her Android smartphone. Id. ¶ 25.
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`Plaintiffs do not allege that Jackson ever read the Policy.
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`Fourth and finally, Plaintiffs allege that this information was “not de-identified or
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`anonymized,” but that their interactions with third-party apps are “directly associated with
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`[their] Google Account[s].” See, e.g., id. ¶¶ 31, 65.
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`II.
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`LEGAL STANDARD
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`Under Federal Rule of Civil Procedure 12(b)(6), the Court may dismiss a complaint
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`for failure to state a claim upon which relief may be granted. Dismissal may be based on
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`either “the lack of a cognizable legal theory or the absence of sufficient facts alleged under
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`a cognizable legal theory.” Godecke v. Kinetic Concepts, Inc., 937 F.3d 1201, 1208 (9th
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`Cir. 2019) (cleaned up). A complaint must plead “sufficient factual matter, accepted as
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`true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662,
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`678 (2009) (cleaned up). A claim is plausible “when the plaintiff pleads factual content
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`that allows the court to draw the reasonable inference that the defendant is liable for the
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`misconduct alleged.” Id. When evaluating a motion to dismiss, the Court “must presume
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`all factual allegations of the complaint to be true and draw all reasonable inferences in
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`1 While Plaintiffs do not allege that any specific data of this kind was collected from Jackson, they
`do allege that Google generally collected “highly specific data relating to” Jackson and that it also
`violated affirmative representations regarding WAA as applied to her. Id. ¶¶ 31–32, 34.
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`Northern District of California
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`Case 3:21-cv-09004-CRB Document 64 Filed 12/01/22 Page 4 of 25
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`favor of the nonmoving party.” Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir.
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`1987). “Courts must consider the complaint in its entirety, as well as other sources courts
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`ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular,
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`documents incorporated into the complaint by reference, and matters of which a court may
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`take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322
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`(2007).
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`Claims for fraud must meet the pleading standard of Federal Rule of Civil
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`Procedure 9(b), which requires a party “alleging fraud or mistake [to] state with
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`particularity the circumstances constituting fraud or mistake.” Rule 9(b) “requires . . . an
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`account of the time, place, and specific content of the false representations as well as the
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`identities of the parties to the misrepresentations.” Swartz v. KPMG LLP, 476 F.3d 756,
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`764 (9th Cir. 2007) (cleaned up). “This means that averments of fraud must be
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`accompanied by the who, what, when, where, and how of the misconduct charged.” In re
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`Google Assistant Priv. Litig., 546 F. Supp. 3d 945, 955 (N.D. Cal. 2021) (internal
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`quotation marks omitted).
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`If a court dismisses a complaint for failure to state a claim, it should “freely give
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`leave” to amend “when justice so requires.” Fed. R. Civ. P. 15(a)(2). A court has
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`discretion to deny leave to amend due to “undue delay, bad faith or dilatory motive on the
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`part of the movant, repeated failure to cure deficiencies by amendment previously allowed,
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`undue prejudice to the opposing party by virtue of allowance of the amendment, [and]
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`futility of amendment.” Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 532 (9th Cir.
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`2008).
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`III. DISCUSSION
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`This order first considers Google’s request for incorporation by reference and
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`judicial notice. See Request for Judicial Notice (“RJN”) (dkt. 58). It next considers
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`Google’s argument that Plaintiffs consented to the data collection they allege in their
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`amended complaint. See Mot. at 5–8. It then addresses Google’s motion to dismiss in the
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`following order: (1) fraud claims (Section 1709, UCL’s fraud prong, and CLRA); (2)
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`privacy claims (common law intrusion upon seclusion, invasion of privacy under the
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`California Constitution, and CIPA); (3) contract claims (breach of contract, implied
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`contract, and unjust enrichment); (4) UCL’s unlawful and unfair prongs; and (5)
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`declaratory judgment claim.
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`A.
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`Incorporation by Reference (Exs. A–E, G–I)
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`Google seeks incorporation by reference of eight documents: two versions of its
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`Privacy Policy, RJN Exs. A & B; and the website and Android versions of its “Activity
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`Controls,” RJN Exs. C–E; G–I. See RJN at 3. Plaintiffs do not oppose this request. See
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`RJN Opp’n (dkt. 59).
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`The incorporation-by-reference doctrine “treats certain documents as though they
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`are part of the complaint itself.” Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 1002
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`(9th Cir. 2018). Documents are subject to incorporation by reference if a plaintiff refers to
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`them “extensively” or they form the basis of the complaint. Id. Courts may properly
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`assume the truth of documents incorporated by reference. Id. at 1003. But “it is improper
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`to assume the truth of an incorporated document if such assumptions only serve to dispute
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`facts stated in a well-pleaded complaint.” Id.
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`The Court’s prior order on Google’s first motion to dismiss found that both versions
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`of Google’s Privacy Policy were incorporated by reference. They remain so for the same
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`reasons, based on Plaintiffs’ many references to them in their amended complaint. See
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`Hammerling, 2022 WL 2812188, at *3; see also, e.g., Am. Compl. ¶¶ 24, 33, 62–63, 73–
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`74.
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`The amended complaint, additionally, both quotes directly and references Google’s
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`“Activity Controls,” or webpages through which Plaintiffs were able to choose what types
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`of their data Google may retain. RJN Exs. C–E; G–I. Plaintiffs provide two notices from
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`Hammerling’s Google account, both of which state that: “This activity was saved to your
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`Google Account because the following settings were on: additional Web & App Activity.
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`You can control these settings here.” Am. Compl. ¶¶ 19 fig. 1, 21 fig. 2. Plaintiffs then
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`provide direct quotes from the page linked in both notices, but do not provide the full
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`linked page. Id. ¶¶ 23, 32, 183. Google provides those linked pages (one before the Web
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`& App Activity setting is enabled, the other after) as Exhibits C & D in its request for
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`judicial notice. See Kanig Decl. (dkt. 58-1) at 1; RJN Ex. C; Ex. D (“WAA Disclosure”).
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`Further, Google provides an additional disclosure that pops up when a user chooses to
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`enable the “[i]nclude Chrome history and activity from sites, apps, and devices that use
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`Google services” option on the Web & App Activity (“WAA”) page, which Google calls
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`the “Additional Web & App Activity” (“AWAA”) disclosure. See Kanig Decl. at 1; RJN
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`Ex. E (“AWAA Disclosure”). Exhibits G, H and I are those same pages, as they appear on
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`Android smartphones. Kanig Decl. at 2; RJN Exs. G–I. Plaintiffs do not dispute the
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`authenticity of these webpages, nor that they are provided when Android users alter their
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`WAA settings, as Google explains in its declaration. See RJN Opp’n.
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`The Court finds that each of these webpages are properly incorporated by reference.
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`The Amended Complaint both references and quotes directly (though selectively) from the
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`WAA Disclosure, which, in turn, when a particular setting is selected, allows the AWAA
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`Disclosure to pop up. See Am. Compl. ¶¶ 23, 32; WAA Disclosure; AWAA Disclosure.
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`These documents are thus part of a singular whole and must be considered together,
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`particularly where Plaintiffs complain that they were not adequately informed about the
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`types of data Google collects from their Android smartphones. Khoja, 899 F.3d at 1002;
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`Al-Ahmed v. Twitter, Inc., No. 21-CV-08017-EMC, 2022 WL 1605673, at *4 (N.D. Cal.
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`May 20, 2022); see also, e.g., Am. Compl. ¶¶ 19, 21, 23, 32, 34. Thus, the Court
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`incorporates by reference Exhibits A–E and G–I to Google’s request for judicial notice.
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`B.
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`Judicial Notice (Exs. F, J, K)
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`Google additionally seeks judicial notice of three documents: a page from its Help
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`Center titled “Find & control your Web & App Activity”, see RJN Ex. F; a Privacy Policy
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`dated September 20, 2021 from the third-party app Wish, see RJN Ex. J; and an undated
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`disclosure from the Google Play Store regarding data collection by the third-party app
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`Groupon, see RJN Ex. K. Plaintiffs do not oppose the request as to the Help Center
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`webpage, but they do oppose the request as to the Wish Privacy Policy and Groupon
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`Case 3:21-cv-09004-CRB Document 64 Filed 12/01/22 Page 7 of 25
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`disclosure. RJN Opp’n at 3.
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`Courts may take judicial notice of a fact that is “not subject to reasonable dispute,”
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`i.e., that is “generally known” or “can be accurately and readily determined from sources
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`whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). “Publicly
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`accessible websites and news articles are among the proper subjects of judicial notice.”
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`Diaz v. Intuit, Inc., 15-cv-1778, 2018 WL 2215790, at *3 (N.D. Cal. May 15, 2018).
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`Courts may not, however, “take judicial notice of disputed facts contained in [] public
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`records.” Khoja, 899 F.3d at 999 (citation omitted).
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`Because Plaintiffs do not dispute the accuracy of the contents of the Help Center
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`webpage, and because webpages like this one are regularly the subject of judicial notice in
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`this circuit, the Court takes judicial notice of Exhibit F. See, e.g., Brown v. Google LLC,
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`No. 20-CV-03664-LHK, 2021 WL 6064009, at *6–7 (N.D. Cal. Dec. 22, 2021).
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`Plaintiffs do, however, argue that it is improper to take judicial notice of the Wish
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`Privacy Policy and the Groupon disclosure, because they “have nothing to do with
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`Plaintiffs’ allegations, which concern only Google’s collection and interception of data
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`from non-Google apps through Android OS,” and that “Google takes no steps to explain
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`how or if Plaintiffs would have seen these documents in the course of purchasing and
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`using their Android devices.” RJN Opp’n at 1 (emphasis omitted).
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`The Court disagrees with Plaintiffs’ contention that such disclosures “have nothing
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`to do with [their] allegations,” but declines to take judicial notice of them nonetheless.
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`While it may be true that these are the most recent privacy policy and data disclosure for
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`Wish and Groupon respectively, they may not contain the same disclosures that
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`Hammerling may have read when she downloaded the apps or used them from 2019 to
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`2021.2 They thus contain no facts that can be “judicially noticeable for [their] truth.”
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`Khoja, 899 F.3d at 999. Whether and to what extent Wish and Groupon alerted
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`Hammerling that her data might be shared, and whether or to what extent they proceeded
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`2 The Court takes no position on whether Hammerling had the opportunity to review a privacy
`policy or data disclosure when she downloaded the Wish or Groupon apps and began using them.
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`Case 3:21-cv-09004-CRB Document 64 Filed 12/01/22 Page 8 of 25
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`to share her data with third parties (perhaps Google), are questions of fact unresolved by
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`these disclosures and inappropriate to resolve on a motion to dismiss.
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`Thus, the Court takes judicial notice of Exhibit F but declines Google’s request to
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`take judicial notice of Exhibits J and K.
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`C.
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`Consent
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`Google argues that, by including five allegations of data collection from
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`Hammerling’s Google account in the amended complaint, Hammerling admits to
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`consenting to the data collection practices at issue. Because Google fails to satisfy the
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`high bar for consent on a motion to dismiss, this argument fails.
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`In their amended complaint, Plaintiffs allege that Google tracked Hammerling’s
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`interaction with three third-party apps, including what product or service she viewed, the
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`date and time at which she viewed it, and the Google product she used at the time. See
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`Am. Compl. ¶¶ 19–21. Plaintiffs provide a notice from Google about the source of two
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`pieces of that data. Under a “Why is this here?” heading, the notice states: “This activity
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`was saved to your Google Account because the following settings were on: additional Web
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`& App Activity. You can control these settings here.” Id. ¶¶ 19 fig. 1, 21 fig. 2. Plaintiffs
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`claim that when they follow the link in those notices, Google states that if Web & App
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`Activity is enabled on that page, it will only “Save[] your activity on Google sites and
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`apps.” Id. ¶ 23. However, Google contends that Plaintiffs selectively quote from the Web
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`& App Activity page. See, e.g., Mot. at 6. Google provides the full Web & App Activity
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`disclosure, which also provides an additional choice for users to select: “Include Chrome
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`history and activity from the sites, apps, and devices that use Google services.” WAA
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`Disclosure; see also Ex. H (same). When users choose this setting, an additional
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`disclosure pops up, clarifying the “activity from sites, apps, and devices that use Google
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`services” that users may allow Google to collect, including: “app activity, including data
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`that apps share with Google”; and “Android usage and diagnostics, like battery level, how
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`often you use your device and apps, and system errors.” AWAA Disclosure; see also Ex. I
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`(same). Google argues that, because the notice in Figures 1 and 2 in the amended
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`complaint indicates that the “additional Web & App Activity” setting was enabled, not just
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`the “Web & App Activity” setting, then Hammerling must have “necessarily reviewed” the
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`AWAA Disclosure in order to enable that setting. Reply (dkt. 61) at 3. It would follow
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`that Hammerling consented to disclosure of her activity on third party apps “that use
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`Google services,” because the AWAA Disclosure tells her so. Google argues that this
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`consent requires dismissal of Plaintiffs’ fraud, privacy, and contract claims. Mot. at 7.
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`This argument fails because Google’s provision of its current AWAA Disclosure
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`does not support the conclusion that Hammerling “necessarily reviewed” the same AWAA
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`Disclosure, and thus consented to it. Google provides only screenshots of the WAA and
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`AWAA Disclosures taken in September 2022. See Kanig Decl. at 1. Assuming that
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`Google’s Activity Controls were incorporated into its Privacy Policy, see id., there is no
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`indication that the disclosures in Google’s Activity Controls were the same when
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`Hammerling first enabled the setting, nor when her data was collected from third-party
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`apps from 2019 to 2021. See Am. Compl. ¶¶ 15, 19–21. For their part, while Plaintiffs
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`may admit that Hammerling enabled the setting at some point, and do admit that she
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`“necessarily saw” the WAA Disclosure,3 Plaintiffs do not admit that Hammerling saw the
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`AWAA Disclosure prior to Google’s request for judicial notice. See id. ¶ 23; see also
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`Opp’n at 16. Thus, it is possible that Hammerling enabled AWAA and did not see the
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`same, or any, disclosure regarding the additional data she was consenting to be collected
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`by Google.4
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`Google relies heavily on In re Facebook, Inc., Consumer Privacy User Profile
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`Litigation to argue that consent can be found on these facts, but that case is inapposite. In
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`3 It may be argued that because Plaintiffs admit that Hammerling “necessarily saw” the statement
`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
`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
`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
`users, and thus the setting was enabled without the user having necessarily seen an AWAA
`Disclosure.
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`Facebook Consumer Privacy, Judge Chhabria found that language in Facebook’s
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`Statement of Rights and Responsibilities and its Data Use Policy disclosed to users that
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`others may share their information with app developers, and that users must take specific
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`steps to prevent this. 402 F. Supp. 3d 767, 792 (N.D. Cal. 2019). It followed that users
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`that did not adjust their settings accordingly were “deemed to have agreed to the language”
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`in Facebook’s policies. Id. at 792–93. Google argues that it flows from Facebook
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`Consumer Privacy that, by enabling “additional App & Web Activity,” consent must be
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`found here and Plaintiffs’ fraud, privacy, and contract claims must be dismissed on this
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`basis. Mot. at 7–8.
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`But a key aspect of Facebook Consumer Privacy was that Judge Chhabria only
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`found consent where the language in question was present at the time users signed up for
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`Facebook accounts in 2009. 402 F. Supp. 3d at 793–94. Whether users who signed up
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`before that language was added consented to it could not be resolved on a motion to
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`dismiss. Id. So too here: Google has not shown that the current AWAA Disclosure was
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`presented to users when Hammerling enabled the setting, and thus consent cannot be found
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`at this early stage as to her.5 What disclosure Hammerling was shown, and whether that
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`language is coextensive with the current AWAA Disclosure, would be questions of fact for
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`a later stage in the case. Nevertheless, Plaintiffs’ claims do not survive this motion to
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`dismiss because their amendments fail to cure the defects found in the Court’s prior order.
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`D.
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`Fraud Claims (Claims 3, 4, and 5)
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`In its prior order, the Court dismissed Plaintiffs’ fraud claims because (1) Plaintiffs
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`failed to allege that they actually relied on any alleged misrepresentation; and (2) Google
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`lacked a duty to disclose any alleged omission. The Court dismissed the CLRA claim for
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`the additional reason that Plaintiffs failed to allege a transaction under the CLRA.
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`Because Plaintiffs fail to cure these deficiencies in the amended complaint,
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`5 Because it is not clear from the amended complaint whether Jackson enabled the AWA or
`AWAA setting, nor which disclosures she saw when she enabled that setting, this argument also
`fails as applied to Jackson. See Am. Compl. ¶¶ 29, 32, 34.
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`Case 3:21-cv-09004-CRB Document 64 Filed 12/01/22 Page 11 of 25
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`Google’s motion to dismiss is again granted as to the CLRA, UCL fraud prong, and
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`Section 1709 claims.
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`1. Misrepresentation
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`As the Court held in its prior order, to plausibly allege a CLRA, Section 1709, or
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`UCL fraud claim on a misrepresentation theory, “a plaintiff must allege that they relied on
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`a misrepresentation and suffered injury as a result.” Hammerling, 2022 WL 2812188, at
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`*6 (citing Moore v. Apple, Inc., 73 F. Supp. 3d 1191, 1200 (N.D. Cal. 2014)). In their
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`initial complaint, Plaintiffs merely alleged that they “relied upon” the alleged
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`misrepresentations “when setting up their Android Smartphones.” Compl. (dkt. 1) ¶ 52.
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`In their amended complaint, Plaintiffs identify additional alleged misrepresentations, see,
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`e.g., Am. Compl. ¶¶ 23–24, and allege that one plaintiff, Hammerling, “read Google’s
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`Privacy Policy,” and that she “did not understand this policy to mean (and did not agree)
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`that Google would collect sensitive data from non-Google apps.” Id. ¶ 25.6 This statement
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`again fails to plead reliance. The additional allegation that Hammerling read the Privacy
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`Policy does not state when she read the policy, nor whether she purchased her Android
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`smartphone in reliance on the alleged misrepresentations in the policy. See Hammerling,
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`2022 WL 2812188, at *6 (citing Davidson v. Apple, Inc., 16-cv-4942, 2017 WL 976048,
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`at *8 (N.D. Cal. Mar. 14, 2017), and Donohue v. Apple, Inc., 871 F. Supp. 2d 913, 925
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`(N.D. Cal. 2012)).
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`Plaintiffs make three arguments against dismissal based on reliance, all of which are
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`unpersuasive.
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`First, Plaintiffs argue that they need not plead actual reliance based on the Privacy
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`Policy because “there is no indication that Google made a different statement or changed
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`its policy before Plaintiff purchased her device to create a different result.” Opp’n at 14.
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`Whether or not this is true, it is beside the point, which is whether Plaintiffs relied on
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`particular alleged misrepresentations to purchase the phones, to their detriment.
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`6 Plaintiffs do not allege that Jackson read the policy. See Am. Compl.
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`Hammerling, 2022 WL 2812188, at *6. If Hammerling read the Privacy Policy after she
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`purchased the phone, even if it was unchanged from the policy that existed prior to her
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`purchase, she did not purchase the phone in reliance upon the representations in the policy.
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`Because Plaintiffs do not allege that Hammerling read the policy prior to her purchase, this
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`argument fails.
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`Second, Plaintiffs argue that their claims in the amended complaint arise not only
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`from the Privacy Policy but also from “the misrepresentations Google made on its settings
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`pages.” Opp’n at 15. Because Plaintiffs argue that they “could not have discovered” the
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`misrepresentations in these pages “until after purchasing their devices,” they need not
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`plead reliance prior to purchase. Id. Instead, they relied on these statements “by
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`continuing to use a device (and supply Google with data) when they otherwise would not
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`have if Google had disclosed the truth about its practices.” Id. But Plaintiffs cite only to
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`paragraphs in their amended complaint that reference only the fact that, had they known
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`“Google would collect [their] sensitive personal data without consent, [they] would not
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`have purchased, or would have paid significantly less for, [their] Android Smartphones.”
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`Am. Compl. ¶¶ 26, 35. They do not plead reliance based on continued use of their phones
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`after viewing the settings pages,7 and thus this theory too fails.
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`Third and finally, Plaintiffs argue that, with respect to their Section 1709 and UCL
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`claims, they allege that “Google’s collection of highly sensitive individualized data is a
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`cognizable harm,” and thus plead an injury of data collection separate and apart from their
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`purchase of the Android Smartphones. Opp’n at 15. Maybe so, but Plaintiffs do not plead
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`that they relied on a misrepresentation and suffered this injury as a result. See
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`Hammerling, 2022 WL 2812188, at *6. Rather, they only state that Google’s data
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`collection “necessarily occurs after Google misrepresented what data it would collect.”
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`Opp’n at 15. Because this is not an allegation of reliance on the misrepresentation, but
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`merely alleging that the alleged misrepresentation was made before the injury, this
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`7 Indeed, they do not plead that Hammerling or Jackson saw or reviewed these settings pages prior
`to reviewing the privacy notices in the amended complaint.
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`Case 3:21-cv-09004-CRB Document 64 Filed 12/01/22 Page 13 of 25
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`argument also fails.
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`Therefore, to the extent Plaintiffs’ fraud claims are based on a misrepresentation
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`theory, they do not survive Google’s motion to dismiss.
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`2.
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`Omission
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`In its prior order, the Court dismissed Plaintiffs’ fraud claims based on an omission
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`theory because in order to plead that Google had a duty to disclose the omitted fact,
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`Plaintiffs must allege that omitted information was “central to the product’s function.”
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`Hammerling, 2022 WL 2812188, at *8–9 (quoting Hodsdon v. Mars, Inc., 891 F.3d 857,
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`863 (9th Cir. 2018)). The Court concluded that because Google’s collection of data from
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`non-Google apps does not render the Plaintiffs’ smartphones “incapable of use” and does
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`not prevent their phones from “performing a critical or integral function,” any fraud claims
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`based on an omission theory must be dismissed. Id. at *9 (quoting Knowles v. ARRIS
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`Int’l PLC, 847 F. App’x 512, 513–14 (9th Cir. 2021), and Ahern v. Apple Inc., 411 F.
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`Supp. 3d 541, 567 (N.D. Cal. 2019)). Plaintiffs’ argument on this point—that “Google’s
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`secret collection of non-Google app data from Android device users impacts its ‘central
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`function’ because privacy is a key—if not the only—consideration in selecting a mobile
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`device”—is nearly identical to the one the Court dismissed in its prior order, and the Court
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`is not persuaded a second time. Opp’n at 17; Hammerling, 2022 WL 2812188, at *8
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`(finding that the argument that “[u]sing apps is at the heart of the smartphone experience”
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`does not prevent a smartphone from “performing a critical or integral function” or
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`otherwise render it “incapable of use”).8
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`In addition, to the extent that Plaintiffs allege a partial omission theory by alleging
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`that Hammerling reviewed the Privacy Policy, this new allegation still cannot survive a
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`motion to dismiss because it still does not meet the 9(b) standard. In its prior order, the
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`8 Plaintiffs’ reference to Flores-Mendez v. Zoosk, Inc., 20-cv-4929, 2022 WL 357500, at *4 (N.D.
`Cal.