Case 5:20-cv-03901-BLF Document 56 Filed 02/10/21 Page 1 of 21
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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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`JOHN COFFEE, MEI-LING MONTANEZ,
`AND S.M., a minor by MEI-LING
`MONTANEZ, S.M.’S parent and guardian,
`on behalf of themselves and all others
`similarly situated,
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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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`
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`Case No. 20-cv-03901-BLF
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`ORDER GRANTING MOTION TO
`DISMISS COMPLAINT WITH LEAVE
`TO AMEND
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`[Re: ECF 17]
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`In this putative nationwide class action, Plaintiffs allege that Loot Boxes – a feature of
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`certain video games – constitute illegal “slot machines or devices” under California’s gambling
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`laws. Compl. ¶ 7, ECF 1. Loot Boxes may be purchased during game play, using virtual
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`currency. Each Loot Box offers a randomized chance at receiving an item designed to enhance
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`game play, such as a better weapon, faster car, or more desirable player appearance (“skin”).
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`Plaintiffs characterize buying a Loot Box as “a gamble, because the player does not know what the
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`Loot Box actually contains until it is opened.” Compl. ¶ 4.
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`Defendant Google, LLC operates the Google Play store from which software applications
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`(“apps”), including video games containing Loot Boxes, may be downloaded. Google does not
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`create the video game apps or Loot Boxes. Plaintiffs nonetheless allege that Google violates state
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`consumer protection laws by offering video games containing Loot Boxes in its Google Play store
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`and profiting from in-app purchase of Loot Boxes.
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`Case 5:20-cv-03901-BLF Document 56 Filed 02/10/21 Page 2 of 21
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`Google moves to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6),
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`arguing that it is immune from liability under Section 230 of the Communications Decency Act of
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`1996 (“CDA”), 47 U.S.C. § 230; Plaintiffs’ core premise that Loot Boxes are illegal under
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`California’s gambling laws lacks merit; and Plaintiffs have not alleged essential elements of their
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`claims. Plaintiffs oppose dismissal. The Court has considered the briefing, oral argument, and
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`relevant legal authorities.
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`The motion to dismiss is GRANTED WITH LEAVE TO AMEND.
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` I.
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`BACKGROUND
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`Plaintiffs are John Coffee (“Coffee”), Mei-Ling Montanez (“Montanez”), and Montanez’s
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`minor son, S.M. Coffee is a citizen and resident of California, while Montanez and S.M. are
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`citizens and residents of New York. Compl. ¶¶ 14-16, ECF 1. Although the complaint describes
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`numerous video games, only two are identified as having been downloaded from the Google Play
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`store by Plaintiffs. Coffee downloaded Final Fantasy Brave Exvius (“Final Fantasy”) from the
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`Google Play store onto his Android mobile device in 2018. Compl. ¶ 14. S.M. downloaded
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`Dragon Ball Z Dokkan Battle (“Dragon Ball Z”) from the Google Play store onto a Samsung
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`smartphone in 2019. Compl. ¶ 16.
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`Final Fantasy, the app downloaded by Coffee, is a free “role-playing game where players
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`command their characters to attack and move through a series of stages until they encounter and
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`defeat the boss.” Compl. ¶ 66. Within the game, virtual currency called “Lapis Crystals” may be
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`used to “summon” a single, randomized character. Compl. ¶ 67. “Summons are the in-game Loot
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`Boxes that offer random rewards and characters.” Id. “The best characters are the most rare and
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`difficult to get in the summons.” Id. Players may obtain the Lapis Crystals necessary to buy a
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`summons either as a reward for game play or by purchasing them with real money. Compl. ¶¶ 13,
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`67-68. Coffee allegedly was “induced to spend money to purchase ‘Loot Boxes’ in-game” while
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`playing Final Fantasy and other video games. Compl. ¶ 14. “Coffee estimates he has spent in
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`excess of $500 on in-game Loot Boxes.” Id.
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`Dragon Ball Z, the app downloaded by S.M., “is a free-to-play mobile game based on the
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`Dragon Ball anime franchise and television series.” Compl. ¶ 72. “The main game is made up of
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`Case 5:20-cv-03901-BLF Document 56 Filed 02/10/21 Page 3 of 21
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`levels that work similarly to board games, with spots dedicated to items, power-ups, traps, and
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`fights.” Compl. ¶ 73. “Gamers can unlock new characters with ‘Summons,’ which are the in-
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`game Loot Boxes that offer random rewards and characters.” Id. “The best characters are most
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`rare and difficult to get in the Summons.” Id. Players must use virtual currency called “dragon
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`stones” to purchase summons. Id. Dragon stones may be earned through game play or purchased
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`with real money. Compl. ¶ 74. S.M. allegedly “has been induced to spend his parents’ money to
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`purchase ‘Loot Boxes’ in-game” while playing Dragon Ball Z. Compl. ¶ 17. “Montanez
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`estimates S.M. has spent more than $100 on in-game purchases including Loot Boxes.” Compl. ¶
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`18.
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`“Google does not itself create these games and the Loot Box mechanism.” Compl. ¶ 13.
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`Most of the video games available for download from the Google Play store are free, including the
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`two apps downloaded by Plaintiffs. Compl. ¶¶ 24, 66, 72. Plaintiffs allege that Google
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`nonetheless profits from apps containing Loot Boxes because “[p]ayment for the Apps, including
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`all in-game purchases after the game is downloaded by the consumer (e.g., Loot Boxes), is
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`controlled entirely by Google.” Compl. ¶ 28. Plaintiffs allege that payments for in-game
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`purchases are made “[u]sing Google Play’s payment system, the payments go directly to Google
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`and, after Google takes its 30% of the total, the remainder is distributed to the App developer.” Id.
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`Thus, according to Plaintiffs, “for every Loot Box sale in a game downloaded from the Google
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`Play store, Google receives 30% of the revenue before the developer gets any money at all.” Id.
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`These and other allegations suggest that players buy Loot Boxes directly from Google with
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`real money. See, e.g., Compl. ¶ 4 (“Loot Boxes are purchased using real money”). However, the
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`complaint makes clear that Loot Boxes may be purchased only in-game, and only with virtual
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`currency. See Compl. ¶¶ 67 (alleging that in Final Fantasy a summons must be purchased with
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`virtual currency called Lapis Crystals), 73 (alleging that in Dragon Ball Z “Summons can only be
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`purchased with the in-game currency, called ‘dragon stones’”). Reading the complaint as a whole,
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`the Court understands Plaintiffs to allege that players may use Google Play’s payment system to
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`buy virtual currency from an app developer; Google takes a 30% commission and transmits the
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`remainder of the purchase price to the app developer; and the virtual currency then may be used
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`Case 5:20-cv-03901-BLF Document 56 Filed 02/10/21 Page 4 of 21
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`for in-app purchases of items such as Loot Boxes. See Compl. ¶¶ 26-28, 67, 73.
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`Plaintiffs assert that “Google’s predatory Loot Box scheme” entices consumers, including
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`children, to engage in gambling and similar addictive conduct. Compl. ¶¶ 1, 18. According to
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`Plaintiffs, “Loot Boxes have all the hallmarks of a Las Vegas-style slot machine, including the
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`psychological aspects to encourage and create addiction – especially among adolescents.” Compl.
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`¶ 7. In fact, Plaintiffs assert that under California law Loot Boxes “constitute illegal ‘slot
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`machines or devices’ when played on a mobile phone, tablet, computer, or other similar device.”
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`Id. Plaintiffs allege that “Governments, regulators, and psychologists all agree that Loot Boxes,
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`like the ones in games Defendant offers through its Google Play store, operate as gambling
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`devices for those that play the game, including minors, and that they create and reinforce addictive
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`behaviors.” Compl. ¶ 8. Comparing Google’s conduct to the “Joe Camel” advertising campaign,
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`Plaintiffs contend that “Google relies on creating addictive behaviors in kids to generate huge
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`profits for the Company.” Compl. ¶ 2.
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`Plaintiffs assert three state law claims against Google: (1) unlawful and unfair business
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`practices in violation of California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code §
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`17200, et seq.; (2) unfair and deceptive acts and practices in violation of California’s Consumers
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`Legal Remedies Act (“CLRA”), Cal. Civ. Code § 1750, et seq.; and (3) unjust enrichment under
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`unspecified state law. Google seeks dismissal of all three claims under Rule 12(b)(6).
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` II. LEGAL STANDARD
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`“A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a
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`claim upon which relief can be granted tests the legal sufficiency of a claim.” Conservation Force
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`v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011) (quotation marks and citation omitted). While
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`a complaint need not contain detailed factual allegations, it “must contain sufficient factual matter,
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`accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
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`U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
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`facially plausible when it “allows the court to draw the reasonable inference that the defendant is
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`liable for the misconduct alleged.” Id. When evaluating a Rule 12(b)(6) motion, the district court
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`is limited to the allegations of the complaint, documents incorporated into the complaint by
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`Case 5:20-cv-03901-BLF Document 56 Filed 02/10/21 Page 5 of 21
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`reference, and matters which are subject to judicial notice. See Louisiana Mun. Police Employees’
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`Ret. Sys. v. Wynn, 829 F.3d 1048, 1063 (9th Cir. 2016) (citing Tellabs, Inc. v. Makor Issues &
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`Rights, Ltd., 551 U.S. 308, 322 (2007)).
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` III. DISCUSSION
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`Google disputes Plaintiffs’ characterization of Loot Boxes as illegal slot machines or
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`devices under California’s gambling laws. However, Google argues that the Court need not reach
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`the legality of Loot Boxes in order to grant the motion to dismiss, because Google is immune from
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`liability under Section 230 of the CDA. Google also asserts that Plaintiffs have not alleged
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`essential elements of their claims. In opposition, Plaintiffs argue that Google is not immune from
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`liability under the CDA, that Loot Boxes constitute illegal slot machines or devices under
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`California law, and that all claims in the complaint are adequately alleged.
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`At the hearing, the Court indicated that it would dismiss the complaint on immunity
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`grounds under Section 230 of the CDA, with leave to amend, and that it might defer to a later
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`stage of the proceedings the question of whether Loot Boxes constitute illegal gambling devices.
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`That question presents several thorny issues, the resolution of which could have a profound impact
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`on video games, developers, and players. The Court concludes that it would be imprudent to
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`address those issues on the scant record before it, particularly when all claims in the complaint are
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`subject to dismissal on other grounds. For purposes of the present motion, it is unnecessary to
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`determine whether Loot Boxes are illegal slot machines or devices under California’s gambling
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`laws.1
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`Accordingly, the Court limits its evaluation of the motion to Google’s arguments that it is
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`entitled to immunity under the CDA and that Plaintiffs have not alleged essential elements of their
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`claims. Before taking up those arguments, however, the Court addresses the parties’ requests for
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`judicial notice.
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`1 The Court’s decision to defer consideration of issues relating to Loot Boxes’ alleged illegality
`does not preclude Plaintiffs from amending their allegations regarding illegality, with the caveat
`that Plaintiffs may not add new claims or parties absent prior leave of the Court. At the hearing,
`the Court and counsel engaged in a robust discussion of Plaintiffs’ theory of the case, and
`Plaintiffs’ counsel indicated that additional facts could be alleged on the question of illegality.
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`Case 5:20-cv-03901-BLF Document 56 Filed 02/10/21 Page 6 of 21
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`A.
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`Judicial Notice
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`Under Federal Rule of Evidence 201(b), the Court can take judicial notice of any fact that
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`is “not subject to reasonable dispute because it . . . can be accurately and readily determined from
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`sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). Both parties
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`request that the Court take judicial notice of certain of Google’s terms of service.
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`1.
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`Google’s Request
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`Google asks the Court to take judicial notice of the Google Play Terms of Service, and in
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`particular language prohibiting the sale or transfer of game content. See Michaud Decl. Ex. A
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`(Google Play Terms of Service) § 4 (Rights and Restrictions), ECF 17-2. Google offers this
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`language in response to Plaintiffs’ allegation that high-demand Loot Box items may be considered
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`so valuable that they are bought and sold outside the game in a “gray market.” See Compl. ¶ 6.
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`Plaintiffs oppose Google’s request for judicial notice, arguing that Google is asking the Court to
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`accept the Google Play Terms of Service as proof that gamers cannot sell Loot Box items outside
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`the game. Plaintiffs argue that Google is relying on the document to prove the truth of the matters
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`asserted therein, which is not an appropriate use of judicial notice. Plaintiffs dispute Google’s
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`assertion that the Google Play Terms of Service are incorporated by reference into the complaint,
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`pointing out that Google cites to a paragraph of the complaint mentioning the Google Terms of
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`Service, not the Google Play Terms of Service. See Compl. ¶ 22. In reply, Google asserts that it
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`does not rely on the Google Play Terms of Service to prove that players do not trade game items in
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`a gray market, but it does seek to show that such trading is prohibited under the governing terms
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`of service.
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`Other courts in this district have found it appropriate to take judicial notice of Google’s
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`public terms of service. See Matera v. Google Inc., No. 15-CV-04062-LHK, 2016 WL 8200619,
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`at *5 (N.D. Cal. Aug. 12, 2016). Plaintiffs do not dispute the authenticity or accuracy of the copy
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`of the Google Play Terms of Service submitted to the Court. Accordingly, Google’s request for
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`judicial notice as to the existence and contents of the Google Play Terms of Service is
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`GRANTED.
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`Case 5:20-cv-03901-BLF Document 56 Filed 02/10/21 Page 7 of 21
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`2.
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`Plaintiffs’ Request
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`Plaintiffs request judicial notice of the Google Terms of Service. Specifically, Plaintiffs
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`ask the Court to take notice of language providing that “California law will govern all disputes
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`arising out of or relating to these terms, service-specific additional terms, or any related services,
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`regardless of conflict of laws rules,” and that “[t]hese disputes will be resolved exclusively in the
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`federal or state courts of Santa Clara County, California, USA.” Blood Decl. Exh. A (Google
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`Terms of Service) at 12, ECF 28-2. Plaintiffs point out that the Google Terms of Service are
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`expressly referenced in the complaint. See Compl. ¶ 22. Google does not oppose Plaintiffs’
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`request. Under the reasoning set forth above with respect to Google’s request for judicial notice,
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`Plaintiffs’ request for judicial notice of the Google Terms of Service is GRANTED.
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`B.
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`Section 230 of the CDA
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`Google argues that it is immune from liability under Section 230 of the CDA. Plaintiffs
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`contend that Google is not entitled to immunity under Section 230.
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`1.
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`Applicable Law
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`Section 230 of the CDA “protects certain internet-based actors from certain kinds of
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`lawsuits.” Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1099 (9th Cir. 2009), as amended (Sept. 28,
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`2009). As relevant here, Section 230(c)(1) provides that “[n]o provider or user of an interactive
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`computer service shall be treated as the publisher or speaker of any information provided by
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`another information content provider.” 47 U.S.C. § 230(c)(1). “No cause of action may be
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`brought and no liability may be imposed under any State or local law that is inconsistent with this
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`section.” 47 U.S.C. § 203(e)(3).2
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`“The majority of federal circuits have interpreted the CDA to establish broad federal
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`immunity to any cause of action that would make service providers liable for information
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`originating with a third-party user of the service.” Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102,
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`1118 (9th Cir. 2007) (quotation marks and citation omitted). The Ninth Circuit has characterized
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`2 Section 230’s protection also extends to federal law claims. See Fair Hous. Council of San
`Fernando Valley v. Roommates.Com, 521 F.3d 1157 (9th Cir. 2008) (applying Section 230 to
`claim under the Fair Housing Act, 42 U.S.C. § 3601 et seq.). The Court does not address that
`aspect of the CDA because no federal law claims are alleged in this suit.
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`the immunity as “quite robust.” Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1123 (9th Cir.
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`2003). Moreover, district courts within the Ninth Circuit have held that the immunity extends to
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`all claims stemming from an interactive computer service provider’s publication of content created
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`by third parties. See, e.g., Evans v. Hewlett-Packard Co., No. C 13-02477 WHA, 2013 WL
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`4426359, at *2 (N.D. Cal. Aug. 15, 2013) (“[T]he CDA safe harbor protects internet service
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`providers from being sued based on material published by content providers.”); Goddard v.
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`Google, Inc., No. C 08-2738 JF (PVT), 2008 WL 5245490, at *2 (N.D. Cal. Dec. 17, 2008)
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`(“[P]arties complaining that they were harmed by a Web site’s publication of user-generated
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`content . . . may sue the third-party user who generated the content, but not the interactive
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`computer service that enabled them to publish the content online.” (quotation marks and citation
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`omitted)).
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`“This grant of immunity applies only if the interactive computer service provider is not
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`also an ‘information content provider,’ which is defined as someone who is ‘responsible, in whole
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`or in part, for the creation or development of’ the offending content. Fair Hous. Council of San
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`Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157, 1162 (9th Cir. 2008) (quoting §
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`230(f)(3)). “A website operator can be both a service provider and a content provider.” Id. “If it
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`passively displays content that is created entirely by third parties, then it is only a service provider
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`with respect to that content.” Id. “But as to content that it creates itself, or is responsible, in
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`whole or in part for creating or developing, the website is also a content provider.” Id. (quotation
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`marks omitted). “Thus, a website may be immune from liability for some of the content it
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`displays to the public but be subject to liability for other content.” Id.
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`In Barnes, the Ninth Circuit created a three-prong test for Section 230 immunity. See
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`Dyroff v. Ultimate Software Grp., Inc., 934 F.3d 1093, 1097 (9th Cir. 2019) (discussing Barnes
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`test). “Immunity from liability exists for ‘(1) a provider or user of an interactive computer service
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`(2) whom a plaintiff seeks to treat, under a state law cause of action, as a publisher or speaker (3)
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`of information provided by another information content provider.’” Id. (quoting Barnes, 570 F.3d
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`at 1100-01). “When a plaintiff cannot allege enough facts to overcome Section 230 immunity, a
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`plaintiff’s claims should be dismissed.” Id.
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`Case 5:20-cv-03901-BLF Document 56 Filed 02/10/21 Page 9 of 21
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`2.
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`Application of Section 230 to Facts Alleged in this Case
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`Google argues that it appears on the face of the complaint that this test is satisfied. As
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`Plaintiffs’ claims are presently framed, the Court agrees.
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`a.
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`Interactive Computer Service Provider
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`Under the first prong of the Barnes test, the Court must determine whether Plaintiffs’
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`allegations establish that Google is an interactive computer service provider. “The term
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`‘interactive computer service’ means any information service, system, or access software provider
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`that provides or enables computer access by multiple users to a computer server, including
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`specifically a service or system that provides access to the Internet and such systems operated or
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`services offered by libraries or educational institutions.” 47 U.S.C. § 230(f)(2). “Websites are the
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`most common interactive computer services.” Dyroff, 934 F.3d at 1097; see also Roommates.com,
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`521 F.3d at 1162 n.6 (“[t]oday, the most common interactive computer services are websites”).
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`Courts “interpret the term ‘interactive computer service’ expansively.” Dyroff, 934 F.3d at 1097.
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`Plaintiffs allege that “Google creates and maintains a virtual online ‘store’ where it makes
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`available to consumers various software applications (‘Apps’) that are generally . . . created by
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`other developers.” Compl. ¶ 23. These allegations are sufficient to satisfy the first prong of the
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`Barnes test. Plaintiffs do not dispute Google’s status as an interactive computer service provider
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`as that term is used in Section 230.
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`b.
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`Seek to Treat as a Publisher or Speaker
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`Under the second prong of the test, the Court must determine whether Plaintiffs’
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`allegations show that Plaintiffs seek to treat Google as a publisher or speaker with respect to
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`content on the Google Play store. In Barnes, the Ninth Circuit addressed “how to determine when,
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`for purposes of this statute, a plaintiff’s theory of liability would treat a defendant as a publisher or
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`speaker of third-party content.” Barnes, 570 F.3d at 1101. While acknowledging that defamation
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`is the most common claim to be discussed in Section 230 cases, the Ninth Circuit made clear that
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`“many causes of action might be premised on the publication or speaking of what one might call
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`‘information content.’” Id. Examples include claims for discrimination against an operator of an
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`online roommate-matching website; for negligence and fraud against the operator of a social
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`Case 5:20-cv-03901-BLF Document 56 Filed 02/10/21 Page 10 of 21
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`network; for false light against the First Lady and campaign aids; and for negligent publication of
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`advertisements that cause harm to third parties. See id. (collecting cases). “[W]hat matters is
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`whether the cause of action inherently requires the court to treat the defendant as the ‘publisher or
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`speaker’ of content provided by another.” Id. at 1102.
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`For purposes of the CDA, a “publisher” may be defined as “‘the reproducer of a work
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`intended for public consumption’ and also as ‘one whose business is publication.’” Barnes, 570
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`F.3d at 1102 (quoting Webster’s Third New International Dictionary 1837 (Philip Babcock Gove
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`ed., 1986)). Publication includes “any activity that can be boiled down to deciding whether to
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`exclude material that third parties seek to post online.” Roommates, 521 F.3d at 1170-71. Here,
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`all of Plaintiffs’ claims are grounded in video game apps intended for public consumption that
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`Google chooses to place “on the virtual shelves of its Google Play store.” Compl. ¶ 27. Plaintiffs
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`seek to impose liability on Google for the content of those apps that contain Loot Boxes. See
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`Compl. ¶¶ 115-118 (UCL); 124-128 (CLRA); 137-138 (unjust enrichment). Part of the relief
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`sought is an order enjoining Google “from continuing the unlawful practices.” Compl. Prayer. It
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`is unclear exactly what Plaintiffs seek by this request, but presumably they seek an order requiring
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`Google to screen apps offered through its Google Play store and exclude those containing Loot
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`Boxes – conduct that is squarely within the role of a publisher under Roommates. Accordingly, it
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`appears from the face of the complaint that Plaintiffs seek to treat Google as the publisher of the
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`video game apps in question.
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`At the hearing, Plaintiffs’ counsel argued that Section 230 offers protection only to
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`publishers of “speech,” and that because the content published in this case is video game apps, the
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`statute does not apply. Counsel did not cite any authority to support that argument, and at least
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`one court in this district has applied Section 230 where the published content was an app. In
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`Evans, the plaintiff’s claims arose from “The Chubby Checker” app, which was offered for sale
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`and download from a web-based store operated by the defendants, Hewlett-Packard Company and
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`one of its subsidiaries (collectively, “HP”). See Evans, 2013 WL 5594717, at *1. The app
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`“purport[ed] to estimate the size of a man’s genitals based on his shoe size.” Id. The plaintiff, a
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`well-known musician who performed under the stage name Chubby Checker, sued HP for
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`Case 5:20-cv-03901-BLF Document 56 Filed 02/10/21 Page 11 of 21
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`trademark infringement, unfair competition, and related claims. Id. The district court found the
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`plaintiff’s state law claims to be barred by Section 230, noting that a third party “provided the
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`published content” and HP engaged only in “editorial conduct within the duties of service
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`providers.” Id. at *4. This Court likewise concludes that Section 230 may apply when the
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`published content is an app.
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`Plaintiffs also argue that they do not seek to treat Google as a publisher of another’s
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`content, but rather “seek to hold Google accountable for permitting and facilitating illegal
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`gambling.” Opp. at 5, ECF 28. Plaintiffs cite Barnes for the proposition that Section 230 does not
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`insulate interactive computer service providers from liability for their own wrongful conduct that
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`goes beyond merely publishing another’s content. In Barnes, the plaintiff’s ex-boyfriend posted
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`profiles about her on a website operated by the defendant, Yahoo!, Inc. (“Yahoo”). See Barnes,
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`570 F.3d at 1098. The profiles included nude photographs of the plaintiff, solicitations to engage
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`in sexual intercourse purporting to be from the plaintiff, and contact information for the plaintiff.
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`See id. The plaintiff was subjected to undesirable advances from unknown men over a period of
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`months, during which she asked Yahoo several to remove the unauthorized profiles, to no avail.
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`Id. Finally, when a news program prepared a broadcast about the story, a representative of Yahoo
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`contacted the plaintiff and assured her the matter would be taken care of. Id. at 1099. The
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`plaintiff claimed that she relied on that assurance and took no further action while she waited for
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`Yahoo to remove the profiles. Id. After months without word or action from Yahoo, the plaintiff
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`sued Yahoo for negligence and promissory estoppel, and at that point the profiles were removed.
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`Id.
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`The district court dismissed the suit after concluding that the CDA rendered Yahoo!
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`immune from liability for content posted by the plaintiff’s ex-boyfriend. Barnes, 570 F.3d at
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`1099. On appeal, the Ninth Circuit held that the plaintiff’s claim for negligent provision of
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`services fell within the scope of the immunity afforded to Yahoo under Section 230, but her claim
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`for promissory estoppel did not. See id. at 1105-06, 1109. The Ninth Circuit held that while the
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`negligence claim sought to hold Yahoo liable for ordinary conduct of a publisher, liability on the
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`promissory estoppel claim “would come not from Yahoo’s publishing conduct, but from Yahoo’s
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`Case 5:20-cv-03901-BLF Document 56 Filed 02/10/21 Page 12 of 21
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`manifest intention to be legally obligated to do something, which happens to be removal of
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`material from publication.” Id. at 1107.
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`In the present case, Plaintiffs do not allege that Google made them a promise akin to the
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`one made by Yahoo in Barnes. Nor do Plaintiffs allege any other conduct by Google showing its
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`“manifest intention to be legally obligated to do something” for Plaintiffs. While Plaintiffs argue
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`that they seek to hold Google liable for its own conduct in “permitting and facilitating illegal
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`gambling,” it is unclear from the complaint what conduct that might be. Neither the word
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`“permitting” nor the word “facilitating” appears in the complaint. Plaintiffs argue that Google is
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`acting as an unlicensed “casino” by offering video games containing Loot Boxes and converting
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`real money to virtual game currency that is used like poker chips during game play. However,
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`while the opposition brief compares Google to a casino more than a dozen times, the complaint
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`uses the word “casino” only once, in a footnote, and not in reference to Google.
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`The Court concludes that, as currently framed, the complaint does not allege claims based
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`on conduct that goes beyond Google’s role as a publisher of third party content. The second prong
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`of the Barnes test therefore is satisfied.
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`c.
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`Information Provided by Another Content Provider
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`Under the third prong of the Barnes test, the Court must determine whether Plaintiffs’
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`allegations show that the published material – the video game apps containing Loot Boxes – was
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`provided by another content provider. Plaintiffs allege expressly that “Google does not itself
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`create these games and the Loot Box mechanism.” Compl. ¶ 13. The two apps downloaded by
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`Plaintiffs, Final Fantasy and Dragon Ball Z, were created by third party developers and were
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`downloaded by Plaintiffs for free. Compl. ¶¶ 13, 66, 72. These allegations are sufficient to satisfy
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`the test’s third prong.
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`Plaintiffs contend that this prong is not met because Google is a co-developer of the video
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`game apps. As discussed above, “[a] website operator can be both a service provider and a
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`content provider.” Roommates, 521 F.3d at 1162. A website operator is immune only with
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`respect to content created entirely by third parties. See id. However, a website operator is not
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`entitled to immunity as to content “that it creates itself, or is responsible, in whole or in part for
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