Case 5:19-cv-04749-VKD Document 122 Filed 01/17/23 Page 1 of 6
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`SAN JOSE DIVISION
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`DIVINO GROUP LLC, et al.,
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`Plaintiffs,
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`v.
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`GOOGLE LLC, et al.,
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`Defendants.
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`Case No. 19-cv-04749-VKD
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`ORDER DENYING PLAINTIFFS’
`MOTION FOR RECONSIDERATION
`AND DENYING MOTION FOR ENTRY
`OF JUDGMENT
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`Re: Dkt. No. 112
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`With leave of court, plaintiffs move for reconsideration of the portion of the Court’s
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`September 30, 2022 order dismissing, without leave to amend, their California Unruh Act and
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`Unfair Competition Law (“UCL”) claims as barred by Section 230 of the Communications
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`Decency Act (“CDA”), 47 U.S.C. § 230(c)(1). Dkt. Nos. 107, 110, 111, 112. Plaintiffs contend
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`that reconsideration is warranted in view of a recent Fourth Circuit decision, Henderson v. The
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`Source for Public Data, L.P., 53 F.4th 110 (4th Cir. 2022). Defendants oppose the motion for
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`reconsideration. Although not expressly included in their motion for reconsideration, plaintiffs
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`previously requested, in the alternative, entry of final judgment pursuant to Rule 54(b) to permit
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`them to seek an immediate or expedited appeal of the dismissal of their Unruh Act and UCL
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`claims. See Dkt. No. 110. The matter is deemed suitable for determination without oral argument.
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`Civil L.R. 7-1(b). Upon consideration of the moving and responding papers, the Court denies
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`plaintiffs’ motion for reconsideration and denies their motion for entry of judgment.
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`I.
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`MOTION FOR RECONSIDERATION
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`Rule 54(b) of the Federal Rules of Civil Procedure provides that “any order or other
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`decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities
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`Northern District of California
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`United States District Court
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`Case 5:19-cv-04749-VKD Document 122 Filed 01/17/23 Page 2 of 6
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`of fewer than all the parties . . . may be revised at any time before the entry of a judgment
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`adjudicating all the claims and all the parties’ rights and liabilities.” Fed. R. Civ. P. 54(b). Under
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`Civil Local Rule 7-9(b), a party seeking reconsideration of an interlocutory order must show one
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`of the following: (1) “a material difference in fact or law exists from that which was presented to
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`the Court before entry of the interlocutory order for which reconsideration is sought”; (2) “[t]he
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`emergence of new material facts or a change of law occurring after the time of such order”; or
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`(3) “[a] manifest failure by the Court to consider material facts or dispositive legal arguments
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`which were presented to the Court before such interlocutory order.” Civil L.R. 7-9(b).
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`Reconsideration is an “extraordinary remedy, to be used sparingly in the interests of finality and
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`conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th
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`Cir. 2000) (internal quotations and citation omitted). “Indeed, a motion for reconsideration should
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`not be granted, absent highly unusual circumstances, unless the district court is presented with
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`newly discovered evidence, committed clear error, or if there is an intervening change in the
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`controlling law.” Id.
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`Plaintiffs seek reconsideration pursuant to Civil Local Rule 7-9(b)(2), arguing that the
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`Fourth Circuit’s decision in Henderson represents a change in the law justifying reconsideration of
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`the Court’s determination that their Unruh Act and UCL claims are barred by CDA Section
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`230(c)(1),1 which provides that “[n]o provider or user of an interactive computer service shall be
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`treated as the publisher or speaker of any information provided by another information content
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`provider.” 47 U.S.C. § 230(c)(1). The Court concluded that defendants satisfied the requirements
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`for Section 230(c)(1) immunity, namely that they are “(1) a provider or user of an interactive
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`computer service (2) whom a plaintiff seeks to treat . . . as a publisher or speaker (3) of
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`information provided by another information content provider.” Barnes v. Yahoo, Inc., 570 F.3d
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`1096, 1100-01 (9th Cir. 2009); see also Dkt. No. 107 at 26-30.
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`Plaintiffs argue that under Henderson, their Unruh Act and UCL claims do not implicate
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`1 Inasmuch as the Fourth Circuit addressed only the immunity provided by Section 230(c)(1), see
`Henderson, 53 F.4th at 119, the Court does not address, and does not understand plaintiffs to seek
`reconsideration of, the portion of the September 30, 2022 order finding that their Unruh Act and
`UCL claims are barred by CDA Section 230(c)(2).
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`Northern District of California
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`United States District Court
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`Case 5:19-cv-04749-VKD Document 122 Filed 01/17/23 Page 3 of 6
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`traditional publishing conduct and therefore do not fall within Section 230(c)(1) immunity.
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`Henderson concerned claims by a putative class of job seekers against a group of defendants who
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`collected information about individuals, created a database of that information, and sold access to
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`that database on a website for the purpose of furnishing consumer reports to third parties. The job
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`seekers claimed that the defendants violated various provisions of the federal Fair Credit
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`Reporting Act (“FCRA”) by failing to provide the job seekers with a copy of their own records,
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`failing to obtain certain certifications from employers, and failing to maintain proper procedures to
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`ensure accurate information in background reports. See Henderson, 54 F.4th at 118-19. Noting
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`that “[t]he term ‘publisher’ as used in [CDA] § 230(c)(1) ‘derive[s] [its] legal significance from
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`the context of defamation law,’” the Fourth Circuit held that “a claim only treats the defendant ‘as
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`the publisher or speaker of any information’ under [CDA] § 230(c)(1) if it (1) bases the
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`defendant’s liability on the disseminating of information to third parties and (2) imposes liability
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`based on the information’s improper content.” Id. at 123 (quoting Zeran v. Am. Online, Inc., 129
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`F.3d 327, 332 4th Cir. 1997)). In the present litigation, plaintiffs maintain that their Unruh Act
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`and UCL claims do not seek to hold defendants liable for publishing improper content and, thus,
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`Section 230(c)(1) immunity does not apply.
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`Henderson, however, is inapposite. In Henderson, the Fourth Circuit examined the
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`plaintiff job seekers’ claims, in the specific context of the FCRA, and concluded that certain of
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`those claims did not seek to treat the defendants as publishers because they concerned the
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`dissemination of information to the plaintiffs themselves (not a third party), the failure to obtain
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`certain information from third parties, and the failure to maintain proper procedures to ensure
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`accurate information—all of which were deemed not to fall within “publisher” functions for
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`purposes of Section 230(c)(1) immunity. Id. at 124-25. While the job seekers’ other claims could
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`implicate publishing functions to the extent they “functionally depend” on the defendants’
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`dissemination of inaccurate information to a third party, the Fourth Circuit nonetheless found that
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`Section 230(c)(1) immunity did not apply because the defendants were “information content
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`provider[s]” who “made substantive changes to the records’ content that materially contributed to
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`the records’ unlawfulness,” including by reformatting, distilling, and stripping out information and
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`Northern District of California
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`United States District Court
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`Case 5:19-cv-04749-VKD Document 122 Filed 01/17/23 Page 4 of 6
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`replacing information with defendants’ own created summaries. Id. at 118, 126, 129.
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`There are no such facts in the present litigation, which concerns defendants’ decisions to
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`remove, restrict, or demonetize plaintiffs’ videos. See Dkt. No. 107 at 28. Indeed, Henderson
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`expressly declined to consider whether CDA Section 230(c)(1) immunity applies when a claim
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`seeks to hold a party liable for a decision not to publish. Henderson, 54 F.4th at 124 n.18.
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`Moreover, Henderson is not binding on this Court; and while the scope of Section 230(c)(1)
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`immunity is not unlimited, the Fourth Circuit’s narrow construction of Section 230(c)(1) appears
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`to be at odds with Ninth Circuit decisions indicating that the scope of the statute’s protection is
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`much broader. See Fair Housing Council of San Fernando Valley v. Roommates.com, LLC , 521
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`F.3d 1157, 1170-71 (9th Cir. 2008) (“[A]ny activity that can be boiled down to deciding whether
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`to exclude material that third parties seek to post online is perforce immune under section 230.”);
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`see also Prager Univ. v. Google LLC, 85 Cal. App. 5th 1022, 1033 n.4 (2022) (noting that
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`“Henderson’s narrow interpretation of section 230(c)(1) is in tension with the California Supreme
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`Court’s broader view, which we follow, absent a contrary ruling by the United States Supreme
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`Court.”) (citing Murphy v. Twitter, Inc., 60 Cal. App. 5th 12, 24-26 (2021)).
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`Based on the foregoing, plaintiffs have not demonstrated that Henderson warrants
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`reconsideration of the Court’s September 30, 2022 order. Their motion for reconsideration
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`therefore is denied.
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`II. MOTION FOR ENTRY OF JUDGMENT
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`Plaintiffs alternatively request that the Court enter final judgment pursuant to Rule 54(b)
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`on their Unruh Act and UCL claims so that plaintiffs may seek an expedited appeal on the
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`construction and constitutionality of CDA Section 230(c) as applied to those claims. Specifically,
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`plaintiffs request entry of “final judgment under Rule 54(b) as to all portions of the Court’s
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`[September 30, 2022] Order dismissing any part of the Unruh Act or UCL claims with prejudice,
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`whether under either, or both, of §§ 230(c)(1) and (c)(2).” Dkt. No. 110 at 7. Although plaintiffs
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`requested entry of judgment in their motion for leave to file a motion for reconsideration, they did
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`not include the request in the motion for reconsideration itself. See Dkt. Nos. 110, 112. For that
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`reason, defendants declined to address the request at length, but nevertheless state that they object
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`Northern District of California
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`United States District Court
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`Case 5:19-cv-04749-VKD Document 122 Filed 01/17/23 Page 5 of 6
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`to the entry of a partial final judgment. Dkt. No. 120 at 4 n.1.
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`Rule 54(b) “allows a district court dealing with multiple claims or multiple parties to direct
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`the entry of final judgment as to fewer than all of the claims or parties; to do so, the court must
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`make an express determination that there is no just reason for delay.” Curtiss-Wright Corp. v.
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`Gen. Elec. Co., 446 U.S. 1, 3 (1980). In determining whether to enter final judgment under Rule
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`54(b), the Court “must first determine that it is dealing with a ‘final judgment.’” Id. at 7. That is,
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`“[i]t must be a ‘judgment’ in the sense that it is a decision upon a cognizable claim for relief, and
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`it must be ‘final’ in the sense that it is ‘an ultimate disposition of an individual claim entered in the
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`course of a multiple claims action.’” Id. (citation omitted). Second, “the district court must go on
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`to determine whether there is any just reason for delay,” because “[n]ot all final judgments on
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`individual claims should be immediately appealable, even if they are in some sense separable from
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`the remaining unresolved claims.” Id. at 8.
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`“It is left to the sound judicial discretion of the district court to determine the ‘appropriate
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`time’ when each final decision in a multiple claims action is ready for appeal.” Id. “This
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`discretion is to be exercised in the interest of sound judicial administration” and “the equities
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`involved.” Id. (internal quotations and citation omitted). District courts properly may consider
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`factors such as whether the claims subject to Rule 54(b) are “separable from the others remaining
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`to be adjudicated” and whether an appellate court will have to decide the same issues more than
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`once in the event of subsequent appeals. Id. “Plainly, sound judicial administration does not
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`require that Rule 54(b) requests be granted routinely.” Id. at 10.
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`The Court’s September 30, 2022 order is a final disposition of plaintiffs’ Unruh Act and
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`UCL claims. Nonetheless, taking into account judicial administrative interests, as well as the
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`equities involved, plaintiffs have not established the second part of the test for entry of Rule 54(b)
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`judgment. Although plaintiffs note that this action has been pending for some time, and that the
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`parties continue to litigate the sufficiency of the pleadings, plaintiffs themselves have either
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`requested or stipulated to a number of considerable extensions of time. See Dkt. Nos. 12, 31, 68,
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`75, 86, 90, 108, 118. Moreover, plaintiffs have asked for and taken multiple opportunities to
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`amend their complaint. Their most recent effort, their fourth amended complaint, is the subject of
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`Northern District of California
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`United States District Court
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`Case 5:19-cv-04749-VKD Document 122 Filed 01/17/23 Page 6 of 6
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`a pending motion to dismiss on the sole remaining claim for breach of the implied covenant of
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`good faith and fair dealing. Dkt. No. 121. As that motion has not yet been fully briefed or heard,
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`the Court expresses no opinion as to how that matter may be resolved, but notes that the pending
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`motion to dismiss will be heard on March 21, 2023. If this Court were to enter final judgment
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`now as to the Unruh Act and UCL claims, to a certain degree, the Ninth Circuit would still be
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`required to review the same set of facts twice in the event of a subsequent appeal, as all of
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`plaintiffs’ claims2 are based on essentially the same facts. Issues concerning the applicability of
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`CDA Section 230(c) immunity would potentially also have to be addressed in piecemeal fashion,
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`as defendants have asserted that statute as a defense against all of plaintiffs’ claims. Accordingly,
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`the Court is not convinced that entering judgment as to the Unruh Act and UCL claims now would
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`spare an appellate court from duplicating its efforts if there were an immediate appeal and another
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`one following the final disposition of plaintiffs’ other claims. Plaintiffs’ motion for entry of
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`judgment as to their Unruh Act and UCL claims is denied.
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`IT IS SO ORDERED.
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`Dated: January 17, 2023
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`VIRGINIA K. DEMARCHI
`United States Magistrate Judge
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`2 The Court previously dismissed plaintiffs’ claims under the Lanham Act and the California
`Constitution, as well their claim for declaratory judgment, for failure to state a claim for relief.
`Dkt. No. 107.
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`Northern District of California
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`United States District Court
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