Case 3:20-cv-04011-VC Document 115 Filed 07/08/22 Page 1 of 5
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`KIMBERLY CARLESTE NEWMAN, 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. 20-cv-04011-VC
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`ORDER GRANTING MOTION TO
`DISMISS THE THIRD AMENDED
`COMPLAINT
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`Re: Dkt. No. 80, 85
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`1. The federal claims are dismissed without leave to amend. The plaintiffs have failed to
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`add any allegations of consequence to the latest iteration of their complaint, leaving the Court
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`with no choice but to conclude that further amendment would be futile. The First Amendment
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`and Lanham Act claims fail for the same legal reasons articulated in Judge Koh’s prior ruling.
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`See Dkt. No. 68, at 15–22. And the Court again declines to exercise jurisdiction over the
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`declaratory judgment claim for the reasons stated in the prior opinion. See id. at 24–25. There is
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`no need for the Court to consider the difficult questions related to the affirmative defense at this
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`time.
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`With respect to the section 1981 claim, the plaintiffs still fail to plead facts rendering it
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`plausible that YouTube intentionally discriminated against them on the basis of race. The Court
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`agrees that the allegations Judge Koh considered were insufficient to plausibly allege intentional
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`discrimination. See id. at 9–15 (excluding page 11, line 24 through page 12, line 11). The new
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`allegations included in the third amended complaint—additional details about YouTube’s
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`September 2017 meeting with content creators, references to the book Algorithms of Oppression,
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`Case 3:20-cv-04011-VC Document 115 Filed 07/08/22 Page 2 of 5
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`and a chart that purports to compare 33 of the plaintiffs’ restricted videos to the unrestricted
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`videos of white non-Hispanic creators—do not change that conclusion.
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`2. Because the plaintiffs have adequately pled CAFA jurisdiction in this iteration of the
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`complaint, the Court considers their state-law claims for the first time. All of those claims are
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`dismissed, some with leave to amend and some without.
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`The state-law breach of contract claims (Claims 5 and 6) are dismissed with leave to
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`amend. It is possible that these claims could surmount the plausibility hurdle. See King v.
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`Facebook, 2021 WL 5279823, at *7 (N.D. Cal. Nov. 12, 2021) (suggesting limits on Facebook’s
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`discretion to disable an account based on similar community guidelines); Chen v. PayPal, Inc.,
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`61 Cal. App. 5th 559, 570–71 (Cal. Ct. App. 2021) (same for PayPal’s discretion to place a hold
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`on users’ funds). But the complaint is frustratingly vague on key points necessary for the Court
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`to adjudicate the relevant issues. For example, the complaint does not identify which of
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`YouTube’s contracts apply to this dispute (at least five are attached as exhibits to the complaint).
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`And, more importantly, the complaint does not clearly state the express term of the contract
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`YouTube has allegedly violated. Instead, it vaguely refers to YouTube’s promise “to provide
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`Plaintiffs’ equal access to YouTube and all related services that Defendants offer to other users,”
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`without identifying exactly what that promise is and how it was communicated to them.
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`Particularly when a complaint is as long as this one—over 200 pages with more than 2,500 pages
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`of exhibits—it is critical that the plaintiffs clearly identify the disputed issues. On the current
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`record, the Court cannot determine whether it is plausible that YouTube has breached any
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`contract it may have with the plaintiffs.
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`The conversion claim (Claim 10) rises and falls with the contract claims. And the
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`replevin claim (Claim 11) rises and falls with the conversion claim. They are accordingly
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`dismissed with leave to amend.
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`The promissory estoppel claim (Claim 7) is dismissed without leave to amend because
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`the plaintiffs fail to defend it in their opposition brief.
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`The Unruh Act claim (Claim 12) is functionally identical to the section 1981 claim. It is
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`2
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`Case 3:20-cv-04011-VC Document 115 Filed 07/08/22 Page 3 of 5
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`dismissed without leave to amend for the same reasons.
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`The UCL claim (Claim 8) is dismissed with leave to amend. The allegations about
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`YouTube’s unlawful practices are predicated on the section 1981 and Unruh Act claims that have
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`been dismissed. The unfair practice allegations are similarly deficient. The plaintiffs do not
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`respond to the defendants’ argument that they have not plausibly asserted an incipient violation
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`of antitrust law or conduct that significantly harms competition (in contrast to conduct that harms
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`a specific competitor). See Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone
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`Co., 20 Cal. 4th 163, 186–87 (Cal. 1999). Instead, the opposition brief seems to assert a different
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`theory of unfair practice liability that depends on the success of the breach of contract claims,
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`which have been dismissed. And lastly, the plaintiffs did not allege justifiable reliance on any
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`misleading statements with the particularity necessary to support a fraudulent practices claim.
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`See Fed. R. Civ. P. 9(b). The Court cannot identify which of the many statements contained in
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`the 217-page complaint are the basis of this theory of liability. The plaintiffs’ opposition brief is
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`unhelpful on this point, pointing the Court to several unrelated paragraphs of the complaint, only
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`one of which contains the text of an actual statement made by Google/YouTube. See Dkt. No.
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`77, at ¶ 97 (statement made by the Vice President of Product Management for Google/YouTube).
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`But the complaint does not allege how the plaintiffs justifiably relied on that statement, and the
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`plaintiffs do not respond to that argument in their opposition brief.
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`The motion to dismiss the equitable claim for an accounting of debts owed under contract
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`(Claim 9) is also granted with leave to amend, because the plaintiffs have not plausibly alleged
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`that they lack an adequate remedy at law. Indeed, the plaintiffs’ allegations relating to their
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`equitable accounting claim are framed in terms of a breach of contract—they allege that the
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`defendants have wrongfully withheld revenue owed to the plaintiffs under their contracts. See,
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`e.g., Dkt. No. 77, ¶ 618 (“Defendants’ inaccurate and false reports have deprived Plaintiffs and
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`members of the putative Race Discrimination Class of the opportunity to qualify to receive
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`revenue from YouTube channels, and have deprived them of revenue for individual monetized
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`videos and monetized channels which Defendants are obligated to pay under the license
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`Case 3:20-cv-04011-VC Document 115 Filed 07/08/22 Page 4 of 5
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`agreements, the TOS and the Adworks and Adsense contracts.”). The plaintiffs’ allegation that
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`they lack an adequate remedy at law appears to be based on the notion that they cannot
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`determine, at this time, precisely how much revenue the defendants withheld in violation of those
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`contracts. Id. ¶ 620 (“There is no adequate remedy at law by which Plaintiffs and the members of
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`the putative Race Discrimination Class can ascertain the precise amounts of compensation that
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`Defendants owe to the Plaintiffs and the members of the Class under the terms of the license
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`agreement, the TOS, and the Adworks and/or Adsense contracts.”). But it does not follow from
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`the plaintiffs’ present lack of knowledge regarding the amount owed that they lack an adequate
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`remedy at law. See, e.g., St. James Church of Christ Holiness v. Superior Court in and for the
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`County of Los Angeles, 135 Cal. App. 2d 352, 357, 359 (Cal. Ct. App. 1955) (rejecting a claim
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`for equitable accounting to “ascertain the true amount of rentals collected and now held by the
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`defendant”). After all, if the defendants are withholding money from the plaintiffs in breach of
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`their contracts as alleged, discovery on a claim for breach of contract would presumably reveal
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`the amount owed (or, at least, the plaintiffs have not explained why it would not).
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`If the plaintiffs want to pursue a claim for equitable accounting in an amended complaint,
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`they must allege why a breach of contract claim is not available to them at this juncture. Or, if
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`the plaintiffs wish to pursue a claim for equitable accounting as an alternative to a claim for
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`breach of contract, they must explain why a claim for breach of contract may end up being
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`inadequate. See Cepelak v. HP Inc., 2021 WL 5298022, at *2–3 (N.D. Cal. Nov. 15, 2021).
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`The California Liberty of Speech claim (Claim 13) is dismissed without leave to amend,
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`as further amendment would be futile. Under the Pruneyard line of cases, the scope of state
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`action under the California Liberty of Speech clause is broader than the federal First
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`Amendment. See Robins v. Pruneyard Shopping Center, 23 Cal. 3d 899, 908–09 (1979). But
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`Pruneyard discussed physical property that “serve[s] as the functional equivalent of the
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`traditional town center business district, where historically the public’s free speech activity is
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`exercised.” Albertson’s, Inc. v. Young, 107 Cal. App. 4th 106, 114–15 (Cal. Ct. App. 2003). Its
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`holding has not been applied to the Internet, and to do so in this context “would be a dramatic
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`Case 3:20-cv-04011-VC Document 115 Filed 07/08/22 Page 5 of 5
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`expansion of” California law. Prager University v. Google LLC, 2019 Cal. Super. LEXIS 2034,
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`at *17 (Cal. Super. Ct. Nov. 19, 2019); see also hiQ Labs, Inc. v. LinkedIn Corporation, 273 F.
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`Supp. 3d 1099, 1116–17 (N.D. Cal. 2017), aff’d and remanded on other grounds, 938 F.3d 985
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`(9th Cir. 2019), vacated and remanded on other grounds, 141 S. Ct. 2752 (2021); Domen v.
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`Vimeo, Inc., 433 F. Supp. 3d 592, 606–07 (S.D.N.Y. 2020). The Court has serious doubts that the
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`California Supreme Court would endorse such a dramatic expansion given the “potentially
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`sweeping consequences of such a holding” and the “host of potential ‘slippery slope’ problems
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`that are likely to surface.” hiQ Labs, Inc., 273 F. Supp. 3d at 1116.
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`As mentioned previously, a significant problem with the complaint is that it is far too
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`long, far too repetitive, and far too difficult to comprehend. If the plaintiffs choose to file an
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`amended complaint, it must be no longer than 70 pages, and it must reflect a more serious effort
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`to clearly articulate non-frivolous claims. If the amended complaint does not comport with these
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`restrictions, it will be dismissed for that reason alone. Only necessary exhibits should be
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`attached, and the relevant language from those exhibits must be clearly referenced in the
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`complaint.1
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`IT IS SO ORDERED.
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`Dated: July 8, 2022
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`______________________________________
`VINCE CHHABRIA
`United States District Judge
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`1 The Court need not decide whether the exhibits attached to the Willen declaration are
`incorporated by reference into the complaint because it did not consider them to resolve the
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`The plaintiffs’ request for judicial notice is denied. The Court did not consider any of the
`attached exhibits to decide the motion.
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`5
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