Case 5:20-cv-03901-BLF Document 80 Filed 11/01/21 Page 1 of 3
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`Bradford K. Newman (State Bar No. 178902)
` bradford.newman@bakermckenzie.com
`Alexander G. Davis (State Bar No. 287840)
` alexander.davis@bakermckenzie.com
`Anne Kelts Assayag (State Bar No. 298710)
` anne.assayag@bakermckenzie.com
`BAKER & McKENZIE LLP
`600 Hansen Way
`Palo Alto, CA 94304
`Telephone: +1 650 856 2400
`Facsimile: +1 650 856 9299
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`Teresa H. Michaud (State Bar No. 296329)
` teresa.michaud@bakermckenzie.com
`BAKER & McKENZIE LLP
`10250 Constellation Blvd., Suite 1850
`Los Angeles, CA 90067
`Telephone: +1 310 201 4728
`Facsimile: +1 310 201 4721
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`Attorneys for Defendant
`GOOGLE LLC
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`UNITED STATES DISTRICT COURT
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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.
`GOOGLE LLC,
`Defendant.
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`NORTHERN DISTRICT OF CALIFORNIA
`Case No. 5:20-cv-03901-BLF
`Date Action Filed: June 12, 2020
`DEFENDANT GOOGLE LLC’S
`OBJECTION AND MOTION TO
`STRIKE PLAINTIFFS’ PROFFER RE:
`MOTION TO DISMISS FIRST
`AMENDED CLASS ACTION
`COMPLAINT [ECF NO. 77]
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`Judge: Hon. Beth Labson Freeman
`Ctrm.:
`3 - 5th Floor
`Robert F. Peckham Federal Building &
`United States Courthouse
`280 South 1st Street
`San Jose, CA 95113
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`Case No. 5:20-cv-03901-BLF
`DEFENDANT GOOGLE LLC’S OBJECTION AND MOTION TO STRIKE PLAINTIFFS’ PROFFER RE:
`MOTION TO DISMISS FIRST AMENDED CLASS ACTION COMPLAINT [ECF NO. 77]
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`Baker & McKenzie LLP
`10250 Constellation Blvd.,
`Suite 1850
`Los Angeles, CA 90067
`Tel: 310.201.4728
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`Case 5:20-cv-03901-BLF Document 80 Filed 11/01/21 Page 2 of 3
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`OBJECTION AND MOTION TO STRIKE
`At the hearing on Google’s Motion to Dismiss Plaintiffs’ First Amended Complaint (FAC),
`the Court admonished Plaintiffs’ counsel that they cannot “manipulate the facts to bob and weave
`around [the Court’s] order,” and the Court would not permit them to “amend to create new facts.”
`(See Transcript of Hearing at 36:17-19.) Plaintiffs’ “Proffer” last week—belatedly submitted months
`after their original complaint, first amended complaint and Opposition to the Motion to Dismiss—
`attempts to do exactly what the Court prohibited. The Court should sustain this Objection, decline to
`consider the Proffer, and strike it from the docket on this basis alone.
`But even if the Proffer did not directly contravene the Court’s warning to Plaintiffs’ counsel
`during oral argument, it remains procedurally and legally improper and should be disregarded for
`several other reasons.
`First, matters outside the pleadings are improper on a Rule 12(b)(6) motion. See U.S. v. Ritchie,
`342 F.3d 903, 908 (9th Cir. 2003). Plaintiffs did not—and could not—ask the Court to take judicial
`notice of the contents of the Proffer because it is being offered for the truth of the matter asserted, long
`after Plaintiffs could properly have requested judicial notice of facts in support of their Opposition to
`the Motion. See Streets v. Space Sys./Loral, LLC, No. 20-cv-07901-EJD, 2021 U.S. Dist. LEXIS
`173535, at *8 (N.D. Cal. Sep. 13, 2021) (courts will not “credit the truth of any . . . matter asserted”
`in a request for judicial notice).
`Second, the Proffer constitutes inadmissible hearsay. Fed. R. Evid. 801(c), 802. The Proffer
`purports to attach “a copy of Plaintiff Coffee’s Google Play Store order history” but lays no supporting
`foundation as to the supposed evidence, merely asserting that “Plaintiffs’ counsel confirmed” the
`contents of the Proffer when “[f]ollowing up on this factual issue after the hearing.” (See ECF No. 77
`at 1:4-8 & Ex. A.) And as they attempted to do in support of Plaintiffs’ Opposition, Plaintiffs’ counsel
`again attempts to offer improper “expert” testimony—now in the form of this hearsay “Proffer” instead
`of a declaration—when they are not qualified to do so and the argument and purported supporting
`evidence lacks any foundation. (See id. at 1:22-2:4; see also ECF Nos. 71-1, 71-3.)
`Third, the hearsay Proffer is legally irrelevant to the Section 230 immunity that supports
`dismissal in this case, with prejudice. Even if Plaintiffs could amend the complaint again to
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`Case No. 5:20-cv-03901-BLF
`DEFENDANT GOOGLE LLC’S OBJECTION AND MOTION TO STRIKE PLAINTIFFS’ PROFFER RE:
`MOTION TO DISMISS FIRST AMENDED CLASS ACTION COMPLAINT [ECF NO. 77]
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`Baker & McKenzie LLP
`10250 Constellation Blvd.,
`Suite 1850
`Los Angeles, CA 90067
`Tel: 310.201.4728
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`Case 5:20-cv-03901-BLF Document 80 Filed 11/01/21 Page 3 of 3
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`incorporate the inadmissible contents of their Proffer, any such amendment would be futile as their
`claims would still fail as a matter of law because they are barred by Section 230 and further fail to
`allege a violation of the California Penal Code. (See generally ECF Nos. 66, 74.)
`Fourth, the Proffer is factually irrelevant to the Court’s determination of the Motion. As the
`Court previously found and again noted during last month’s hearing, the only video games at issue in
`this action are Final Fantasy Brave Exvius and Dragon Ball Z Dokkan Battle. (Dismissal Order (ECF
`No. 56) at 2:12-16; Transcript at 36:2-8.) Plaintiffs’ counsel suggested at last month’s oral argument
`that they could amend the complaint to allege that Plaintiffs played different games than the two
`already at issue in the FAC, which led to the Court’s admonishment that Plaintiffs cannot circumvent
`the Court’s orders with new factual allegations. (See Transcript at 36:9-19.) Plaintiffs’ Proffer
`predictably requests leave to amend to add the exact allegations that the Court already forbade
`Plaintiffs from adding, as their newly-submitted hearsay relates to purchases made in two different
`games: Puzzles and Dragons and Clash Royale. (ECF No. 77 at 1.)
`Fifth and finally, Plaintiffs’ Proffer concedes that the alleged purchases were made between
`January 2017 and March 2019, more than a year before the filing of both the original and the amended
`complaints, so even if this irrelevant hearsay lacking in all foundation were admissible, there is no
`basis for the Court to consider this evidence now. Simply put, Plaintiffs are too late.
`For all of the reasons set forth in Google’s Motion to Dismiss the First Amended Complaint
`and supporting Reply, the FAC should be dismissed with prejudice and Plaintiffs’ proffer stricken
`from the record.
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`Dated: November 1, 2021
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`BAKER & McKENZIE LLP
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`By: /s/ Teresa H. Michaud
`Teresa H. Michaud
`Attorneys for Defendant
`GOOGLE LLC
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`Respectfully submitted,
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`Case No. 5:20-cv-03901-BLF
`DEFENDANT GOOGLE LLC’S OBJECTION AND MOTION TO STRIKE PLAINTIFFS’ PROFFER RE:
`MOTION TO DISMISS FIRST AMENDED CLASS ACTION COMPLAINT [ECF NO. 77]
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