Case 5:20-cv-07956-VKD Document 51 Filed 10/01/21 Page 1 of 16
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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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`JOSEPH TAYLOR, et al.,
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`Plaintiffs,
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`v.
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`GOOGLE LLC,
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`Defendant.
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`Case No. 20-cv-07956-VKD
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`ORDER GRANTING DEFENDANT'S
`MOTION TO DISMISS COMPLAINT
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`Re: Dkt. No. 33
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`Plaintiffs sue Google LLC (“Google”), individually and on behalf of a putative class of
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`Android mobile device owners, for conversion and quantum meruit based on alleged “passive”
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`data transfers performed by Google over its Android operating system without consent. Google
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`moves pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure to dismiss
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`the complaint. Plaintiffs oppose the motion. Upon consideration of the moving and responding
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`papers, as well as the oral arguments presented, the Court grants Google’s motion to dismiss with
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`leave to amend as discussed below1
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`I.
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`BACKGROUND
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`According to the complaint’s allegations, plaintiffs Joseph Taylor, Edward Mlakar, Mick
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`Cleary, and Eugene Alvis are non-California residents2 who own Android mobile devices that they
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`use with a monthly cellular data plan purchased from various service providers, including T-
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`1 All parties have expressly consented that all proceedings in this matter may be heard and finally
`adjudicated by a magistrate judge. 28 U.S.C. § 636(c); Fed. R. Civ. P. 73; Dkt. Nos. 16, 23.
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` 2
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` The complaint states that Messrs. Taylor and Mlakar are residents and domiciliaries of Illinois,
`Mr. Cleary is a resident and domiciliary of Wisconsin, and Mr. Alvis is a resident and domiciliary
`of Iowa. Dkt. No. 1 ¶¶ 8-11.
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`Case 5:20-cv-07956-VKD Document 51 Filed 10/01/21 Page 2 of 16
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`Mobile, Verizon and U.S. Cellular. Dkt. No. 1 ¶¶ 8-11. Messrs. Taylor, Mlakar, and Cleary each
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`have unlimited data plans. Mr. Alvis has a limited data plan he purchased from one service
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`provider, as well as an unlimited data plan he purchased from another service provider. Id.
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`Plaintiffs allege that Google “designed the Android operating system to collect vast
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`amounts of information about users, which Google uses to generate billions in profit annually by
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`selling targeted digital advertisements.” Id. ¶ 1. Much of this information-gathering activity, say
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`plaintiffs, takes place “secretly,” is “not initiated by any action of the user” and is “performed
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`without their knowledge,” including at times when their devices are seemingly idle. Id. ¶¶ 3, 33.
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`Indeed, according to the complaint, “Google deliberately designed and coded its Android
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`operating system and Google applications to indiscriminately take advantage of Plaintiffs’ data
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`allowances and passively transfer information at all hours of the day—even after Plaintiffs move
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`Google apps to the background, close the programs completely, or disable location-sharing.” Id.
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`¶ 3. In performing these so-called “passive” data transfers, plaintiffs allege that Google “secret[ly]
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`appropriate[es] . . . Android users’ cellular data allowances,” even though the transfers are “not
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`time-sensitive and could be delayed until Plaintiffs are in Wi-Fi range to avoid consuming
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`Plaintiffs’ cellular data allowances.” Id. ¶¶ 2, 3. Plaintiffs further allege that they never consented
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`to these data transfers, and that Google’s various policies and terms of service are contracts of
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`adhesion that do not in any way provide users with notice of these passive data transfers. Instead,
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`say plaintiffs, mobile device users only consent to Google’s use of their cellular data when they
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`are actively using Google’s products. Id. ¶¶ 4, 5, 29-31, 45-50.
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`Claiming that they have property interests in their cellular data allowances, plaintiffs
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`contend that the alleged passive data transfers “depriv[e] them of data for which they, not Google,
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`paid” and benefit “[Google]’s product development and lucrative targeted advertising business” at
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`plaintiffs’ expense. Id. ¶¶ 6, 7. As noted above, plaintiffs assert claims for conversion and
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`quantum meruit for themselves and on behalf of a proposed class of “[a]ll natural persons in the
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`United States (excluding citizens of the State of California) who have used mobile devices running
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`the Android operating system to access the internet through cellular data plans provided by mobile
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`Case 5:20-cv-07956-VKD Document 51 Filed 10/01/21 Page 3 of 16
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`carriers.” Id. ¶ 54.3 The complaint asserts jurisdiction under the Class Action Fairness Act of
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`2005, 28 U.S.C. § 1332(d), on the grounds that the amount in controversy exceeds $5 million,
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`exclusive of interest and costs, there are 100 or more class members, and the parties are minimally
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`diverse. Id. ¶ 13. Plaintiffs seek an injunction “directing Google to stop using cellular data
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`purchased by consumers without their consent,” as well the “fair market value of the cellular data
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`converted by Google,” the “reasonable value of the cellular data used by Google to extract and
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`deliver information that benefited Google,” and fees and costs. Id. ¶ 78.
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`Google moves to dismiss the complaint pursuant to Rule 12(b)(1), arguing that plaintiffs
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`lack standing to pursue their claims because they have not alleged facts indicating that they have
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`suffered any injury. Even if plaintiffs have standing, Google moves to dismiss pursuant to Rule
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`12(b)(6), arguing that (1) plaintiffs’ conversion claim fails because the complaint does not allege a
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`cognizable property interest, interference, or damages and because plaintiffs consented to the
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`alleged data use and (2) plaintiffs’ quantum meruit claim fails because it is merely derivative of
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`plaintiffs’ conversion claim. For the reasons discussed below, the Court grants Google’s motion
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`to dismiss with leave to amend as specified below.4
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`II.
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`DISCUSSION
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`A.
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`Rule 12(b)(1) Motion to Dismiss
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`Google argues that plaintiffs lack standing to bring their claims because they have not
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`alleged an injury-in-fact. Standing is a jurisdictional issue properly addressed under a Rule
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`12(b)(1) motion. Cetacean Cmty. v. Bush, 386 F.3d 1169, 1174 (9th Cir. 2004). A Rule 12(b)(1)
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`motion to dismiss challenges a federal court’s jurisdiction over the subject matter of a plaintiff’s
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`complaint. A jurisdictional challenge under Rule 12(b)(1) may be made either on the face of the
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`3 The proposed class excludes Google, “its officers, directors, management, employees,
`subsidiaries, and affiliates” and “any judges or justices involved in this action and any members of
`their immediate families or their staff.” Id. ¶ 55.
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` 4
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` In resolving the present motion, the Court finds it unnecessary to consider the various terms and
`policies Google submitted and the Form 10-K, and website materials submitted by plaintiffs (Dkt.
`No. 39-1, Exs. 3-5). The parties’ respective motions for judicial notice of those materials (Dkt.
`Nos., 33-7, 39-2) are denied as moot.
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`pleadings (a “facial attack”) or by presenting extrinsic evidence (a “factual attack”). Warren v.
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`Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) (citing White v. Lee, 227 F.3d
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`1214, 1242 (9th Cir. 2000)). “In a facial attack, the challenger asserts that the allegations
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`contained in a complaint are insufficient on their face to invoke federal jurisdiction. By contrast,
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`in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would
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`otherwise invoke federal jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th
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`Cir. 2004).
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`Because Google’s arguments focus on the sufficiency of the complaint’s allegations, the
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`Court construes the present motion as a facial attack on plaintiffs’ standing. As such, the record is
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`limited to the complaint and materials that may be judicially noticed. See Hyatt v. Yee, 871 F.3d
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`1067, 1071 n.15 (9th Cir. 2017). Additionally, the Court must accept well-pled allegations of the
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`complaint as true, draw all reasonable inferences in plaintiffs’ favor, and determine whether their
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`allegations are sufficient to support standing. See id. As the parties asserting federal subject
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`matter jurisdiction, plaintiffs bear the burden of establishing its existence. Kokkonen v. Guardian
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`Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
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`Under Article III of the Constitution, federal courts have jurisdiction to decide only actual
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`“Cases” or “Controversies,” U.S. Const., art. III, § 2, and plaintiffs have standing to sue if they
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`“(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the
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`defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v.
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`Robins, 136 S. Ct. 1540, 1547 (2016); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-
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`61 (1992). Plaintiffs’ claimed injury must be both “particularized” and “concrete.” A
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`“particularized” injury is one that “‘affect[s] the plaintiff in a personal and individual way.’”
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`Spokeo, Inc., 136 S. Ct. at 1548 (quoting Lujan, 504 U.S. at 560 n.1). A “concrete” injury is not
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`limited to one that is tangible. Id. at 1549. “Various intangible harms can also be concrete,” and
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`“[c]hief among them are injuries with a close relationship to harms traditionally recognized as
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`providing a basis for lawsuits in American courts,” such as “reputational harms, disclosure of
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`private information and intrusion upon seclusion.” TransUnion LLC v. Ramirez, 141 S. Ct. 2190,
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`2204 (2021). Nevertheless, a “concrete” injury “must actually exist” and must be “real, and not
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`Case 5:20-cv-07956-VKD Document 51 Filed 10/01/21 Page 5 of 16
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`abstract.” Spokeo, Inc., 136 S. Ct. at 1548.
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`“The Art[icle] III judicial power exists only to redress or otherwise to protect against injury
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`to the complaining party, even though the court’s judgment may benefit others collaterally,” and
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`“[a] federal court’s jurisdiction therefore can be invoked only when the plaintiff himself has
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`suffered some threatened or actual injury resulting from the putatively illegal action.” Warth v.
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`Seldin, 422 U.S. 490, 499 (1975) (internal quotations and citation omitted). Thus, in the class
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`action context, plaintiffs “must allege and show that they personally have been injured, not that
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`injury has been suffered by other unidentified members of the class to which they belong and
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`which they purport to represent.” Id. at 502.
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`Google argues that the complaint merely speculates about harms that other Android device
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`users may have experienced, and fails to allege facts demonstrating that the plaintiffs themselves
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`have suffered any injury. For example, Google points out that while the complaint alleges that
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`individuals with limited data plans typically are charged an overage fee if they exceed their data
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`allowances, Mr. Alvis (the only plaintiff with a limited data plan) does not allege that he was ever
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`charged such fees. See Dkt. No. 33 at 7; see also Dkt. No. 1 ¶¶ 11, 26. Similarly, Google notes
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`that the complaint alleges that individuals with unlimited data plans are “typically subject to
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`quotas on their usage and will have their cellular connection speeds throttled if they exceed such
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`quotas,” resulting in lost functionalities, such as video streamlining, or in significantly impaired
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`device performance. See Dkt. No. 33 at 7; see also Dkt. No. 1 ¶¶ 8-11, 26. However, no plaintiff
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`alleges that his unlimited data plan was subject to such quotas or that his connection speed was
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`ever throttled.
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`Citing In re Facebook, Inc. Internet Tracking Litigation, 956 F.3d 589 (9th Cir. 2020),
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`plaintiffs argue that their “interest in disgorging Google’s unjust enrichment” is sufficient to
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`establish Article III standing. Dkt. No. 39 at 13-14. In Facebook Internet Tracking, Facebook
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`admittedly used plug-ins to track logged-out users’ browsing histories, and compiled those
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`browsing histories into personal profiles that Facebook sold to advertisers to generate revenue.
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`956 F.3d at 596. The district court dismissed several common law claims, including trespass to
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`chattels and fraud, for lack of standing on the ground that the plaintiffs failed to allege that they
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`suffered any economic injury deemed necessary to assert such claims. Id. at 599. Noting that the
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`plaintiffs alleged that Facebook was unjustly enriched through the company’s admitted use of their
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`browsing histories, the Ninth Circuit rejected Facebook’s argument that plaintiffs’ allegations
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`regarding Facebook’s unjustly earned profits were insufficient to confer Article III standing. In
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`reaching that conclusion, the Ninth Circuit explained that “‘state law can create interests that
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`support standing in federal courts,’” and “California law recognizes a right to disgorgement of
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`profits resulting from unjust enrichment, even where an individual has not suffered a
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`corresponding loss.” Id. at 599 (quoting Cantrell v. City of Long Beach, 241 F.3d 674, 684 (9th
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`Cir. 2001)). The Ninth Circuit found that the plaintiffs sufficiently alleged that Facebook profited
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`from their personal data by citing to studies valuing users’ browsing histories at $52 per year, as
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`well as research panels that pay users for access to their browsing histories, and by alleging that
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`Facebook’s ad sales constituted over 90% of the company’s revenue during the relevant period.
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`Id. at 600-01.
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`The Court does not read Facebook Internet Tracking to stand for the proposition that
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`simply alleging a demand for disgorgement of profits or an unjust enrichment theory is, by itself,
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`sufficient to establish Article III standing where plaintiffs have not otherwise pled sufficient facts
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`establishing that they personally suffered a particular and concrete injury. Here, plaintiffs also
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`argue that allegations regarding the deprivation of their “property interest in the bytes [of cellular
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`data] they purchased” are sufficient to establish standing because deprivation of a property interest
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`is a particularized, concrete injury. Dkt. No. 39 at 13-14. They seek both monetary relief (the
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`value of the cellular data used by Google) and injunctive relief (an order directing Google to stop
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`using plaintiffs’ cellular data allowances without their consent). Dkt. No. 1 at 21-22. “Although
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`standing in no way depends on the merits of the plaintiff’s contention that particular conduct is
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`illegal, it often turns on the nature and source of the claim asserted.” Warth, 422 U.S. at 500
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`(citation omitted). It is clear from the parties’ arguments that the issue of plaintiffs’ Article III
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`standing turns on the parties’ fundamental disagreement about whether plaintiffs’ cellular data
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`allowances properly are the subject of a conversion claim or a claim for quantum meruit, and that
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`the questions of standing and failure to state a claim are intertwined.
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`For the reasons discussed below, the Court finds that plaintiffs do not have a property
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`interest in their cellular data allowances that was harmed by Google’s alleged conduct, and
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`therefore do not state a claim for conversion or for quantum meruit.
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`B.
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`Rule 12(b)(6) Motion to Dismiss
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`A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) tests the legal
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`sufficiency of the claims in the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001).
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`Dismissal is appropriate where there is no cognizable legal theory or an absence of sufficient facts
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`alleged to support a cognizable legal theory. Id. (citing Balistreri v. Pacifica Police Dep’t, 901
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`F.2d 696, 699 (9th Cir. 1990)). In such a motion, all material allegations in the complaint must be
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`taken as true and construed in the light most favorable to the claimant. Id.
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`However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere
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`conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Moreover,
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`“the court is not required to accept legal conclusions cast in the form of factual allegations if those
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`conclusions cannot reasonably be drawn from the facts alleged.” Clegg v. Cult Awareness
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`Network, 18 F.3d 752, 754-55 (9th Cir. 1994).
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`Rule 8(a)(2) requires only “a short and plain statement of the claim showing that the
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`pleader is entitled to relief.” This means that the “[f]actual allegations must be enough to raise a
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`right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
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`(2007) (citations omitted). However, only plausible claims for relief will survive a motion to
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`dismiss. Iqbal, 556 U.S. at 679. A claim is plausible if its factual content permits the court to
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`draw a reasonable inference that the defendant is liable for the alleged misconduct. Id. A plaintiff
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`does not have to provide detailed facts, but the pleading must include “more than an unadorned,
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`the-defendant-unlawfully-harmed-me accusation.” Id. at 678.
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`Documents appended to or incorporated into the complaint or which properly are the
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`subject of judicial notice may be considered along with the complaint when deciding a Rule
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`12(b)(6) motion. Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010).
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`1.
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`Conversion Claim
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`As noted above, the parties dispute whether plaintiffs have a property interest in their
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`cellular data allowances that provides a cognizable basis for a conversion claim under California
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`law. See Dkt. No. 1 ¶ 60.b. (stating that an issue common to the putative class is “[w]hether the
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`cellular data allowances that Plaintiffs purchase are property interests recognized by California
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`law[.]”). “In California, conversion has three elements: ownership or right to possession of
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`property, wrongful disposition of the property right and damages.” G.S. Rasmussen & Assocs.,
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`Inc. v. Kalitta Flying Serv., Inc., 958 F.2d 896, 906 (9th Cir. 1992); see also Fremont Indem. Co.
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`v. Fremont Gen. Corp., 148 Cal. App. 4th 97, 119 (2007) (“The basic elements of the tort [of
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`conversion] are (1) the plaintiff’s ownership or right to possession of personal property; (2) the
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`defendant’s disposition of the property in a manner that is inconsistent with the plaintiff’s property
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`rights; and (3) resulting damages.”).
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`Google argues that plaintiffs cannot state a conversion claim because they do not have
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`personal property rights in their cellular data allowances. Courts apply a three-part test to
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`determine whether a property right exists: “First, there must be an interest capable of precise
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`definition; second, it must be capable of exclusive possession or control; and third, the putative
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`owner must have established a legitimate claim to exclusivity.” GS Rasmussen, 958 F.2d at 903
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`(footnotes omitted). “Although the question was once the matter of some controversy, California
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`law now holds that property subject to a conversion claim need not be tangible in form; intangible
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`property interests, too, can be converted.” Voris v. Lampert, 7 Cal. 5th 1141, 1151 (2019); see
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`also Kremen v. Cohen, 337 F.3d 1024, 1033 (9th Cir. 2003) (stating that insofar as “California
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`retains some vestigial merger requirement, it is clearly minimal, and at most requires only some
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`connection to a document or tangible object[.]”).
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`As alleged in their complaint, plaintiffs assert a property right in “their purchased data
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`allowances” created by contract with their respective service providers. See Dkt. No. 1 ¶ 6
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`(“Whether Plaintiffs pay for a specific number of gigabytes or unlimited access subject to speed
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`restrictions above a certain data usage threshold, the contracts between Plaintiffs and their mobile
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`carriers create for Plaintiffs concrete property interests in their purchased data allowances.”); ¶ 27
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`(“The purchase of data plans from mobile carriers creates a property interest for Plaintiffs in their
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`cellular data allowances.”); ¶ 63 (“Plaintiffs have property interests in the cellular data allowances
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`that they purchase from their mobile carriers.”). The parties dispute whether, in view of the fact
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`that data plans may provide for limited or unlimited data allowances, these “purchased data
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`allowances” represent a precisely defined property interest that is capable of exclusive possession
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`or control. See Dkt. No. 33 at 11-13; Dkt. No. 39 at 15-19. Even assuming, without deciding, that
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`plaintiffs’ purported property right is precisely defined, their conversion claim fails because they
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`do not allege facts demonstrating exclusive possession of the “purchased data allowances” for
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`which they contract.
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`Although plaintiffs argue that their data plans confer ownership of “[p]urchased [b]ytes of
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`[c]ellular [d]ata” (Dkt. No. 39 at 14), they have not plausibly alleged facts demonstrating a right to
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`exclusive access to unique or specific bytes of data. Rather, the complaint’s allegations indicate
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`that plaintiffs’ data allowances provide them with a contractual right to access their service
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`provider’s cellular data network—a right that is not exclusive of others’ rights to access the same
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`network. Plaintiffs confirm that they “use the term ‘data allowances’ to refer to the quantity of
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`cellular data bytes that they have purchased” through contracts with their respective service
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`providers. Dkt. No. 39 at 16 n.5. In other words, a data allowance provides subscribers, such as
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`plaintiffs, with a contractual right of access to a service, i.e., access to a service provider’s cellular
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`data network that enables users “to send and receive information over the internet without a Wi-Fi
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`connection.” See Dkt. No. 1 ¶ 24. For some subscribers that right of access is limited to a certain
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`volume of data transmission per month (measured in bytes of data), and for others it is unlimited.
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`See Dkt. No. 1 ¶¶ 8-11. In any event, that right of access is not exclusive of others’ right of access
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`to the same network, and no subscriber possesses or controls a particular byte or bytes of data in
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`the network. Indeed, plaintiffs acknowledge that the purported property right of access to a
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`cellular data network grants them the ability to access “quantities of cellular data available to all of
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`[a carrier’s] customers.” Dkt. No. 39 at 17.
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`Thus, while plaintiffs assert that their service provider contracts give them “a possessory
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`interest in cellular data that exists independent of the contacts” (Dkt. No. 39 at 9), the complaint’s
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`allegations indicate that plaintiffs’ purported property right in “purchased data allowances” is a
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`right to obtain services conferred by their contracts with the service providers. Courts have held
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`“that the benefits of contractual rights are not personal property capable of conversion.” Monster
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`Energy co. v. Vital Pharm., Inc., No. EDCV 18-1882 JGB (SHKx), 2019 WL 2619666, at *13
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`(C.D. Cal. May 20, 2019) (citing cases). While plaintiffs allege that their right of access
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`nonetheless “includes the right to exclude other persons and entities from using Plaintiffs’ cellular
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`data allowances” (Dkt. No. 1 ¶ 27), the same could be said of other rights granted by contract that
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`do not provide a basis for a conversion claim. See, e.g., Boon Rawd Trading Int’l Co. Ltd. v.
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`Paleewong Trading Co. Inc., 688 F.Supp.2d 940, 955 (N.D. Cal. 2010) (concluding that exclusive
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`importation right “is an intangible contractual right protected under contract law, not tort law.”).
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`In some contexts, contract provisions may inform whether a plaintiff has a possessory right. For
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`example, in a suit over non-payment of wages the California Supreme Court observed that
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`“[c]ontractual provisions may, of course, determine whether the plaintiff has a possessory right to
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`certain funds in the defendant’s hands.” Voris, 7 Cal. 5th at 1152. Here, however, for the reasons
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`discussed, plaintiffs have not plausibly alleged facts demonstrating a right to exclusive access to
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`unique or specific bytes of cellular data.
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`Plaintiffs nonetheless contend that access to a service provider’s cellular data network is
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`akin to the consumption of public utilities such as water, natural gas, or electricity that can be
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`subject to a conversion claim. Here, plaintiffs argue that “users consume discrete bytes of cellular
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`data on demand” in much the same way people use water or other utilities and that “each cellular
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`byte that a device uses” is allocated specifically to that device and is not available for use by any
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`other device. Dkt. No. 39 at 16-17, 20. Plaintiffs thus contend that they have a property interest
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`in a product (i.e., bytes of data), not a service. Plaintiffs further argue that once accessed, each
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`byte of data becomes the personal property of the user. Id. at 17, 20. The Court finds plaintiffs’
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`analogy to the use of water, gas, or electricity unpersuasive. A utility customer may plausibly be
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`said to consume a discrete quantum of water, gas, or electricity in a manner that makes that
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`specific quantum of water, gas, or electricity unavailable to any other customer. The allegations of
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`the complaint do not plausibly establish that use of a cellular data network involves the exclusive
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`consumption of a quantum of data or that plaintiffs have exclusive possession or control of unique
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`or specific bytes of data; rather, the plaintiffs allege non-exclusive access to a service provider’s
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`Case 5:20-cv-07956-VKD Document 51 Filed 10/01/21 Page 11 of 16
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`network, where the extent of such access is simply measured in bytes of data. See Dkt. No. 1 ¶¶ 6,
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`27, 63.
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`Maintaining that “bytes of cellular data are property” independent of a contract, plaintiffs
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`further analogize to a small grocer’s purchase of apples from a commercial farmer. Dkt. No. 39 at
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`16. In plaintiffs’ analogy, apples are the grocer’s property, whether the grocer pays the farmer on
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`a per-apple basis, or whether the grocer pays a fixed sum under a requirements contract for all the
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`apples the grocer can sell in a given month. Plaintiffs argue that “bytes of cellular data” similarly
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`“are property regardless of whether they are acquired through a pay-as-you-use plan, a monthly
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`cap plan, or a monthly requirements plan.” Id. The problem with plaintiffs’ argument is that
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`apples, by their nature, can be possessed and controlled as property and exist independently of the
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`contract. By contrast, plaintiffs’ claimed property interest is not in “bytes of cellular data,” which
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`is simply the measure of a user’s access to a given network. Rather, the alleged property right is
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`“purchased data allowances,” an interest that is based solely on the contractual right to use a
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`service, i.e., to “access the carriers’ cellular data networks, thereby providing users with the ability
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`to send and receive information over the internet without a Wi-Fi connection.” Dkt. No. 1 ¶¶ 6,
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`24.
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`The parties have not cited, and the Court has not found, cases addressing the question of
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`whether cellular service subscribers have a property interest in their cellular data allowances.
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`Plaintiffs, however, note that in a parallel proceeding in the Santa Clara County Superior Court
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`concerning a putative class of California citizens, the court overruled Google’s demurrer to the
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`complaint and concluded that the plaintiffs stated a claim for conversion based on an alleged
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`property right in their data allowances. See Dkt. No. 39-1, Ex. 1 (Order After Hearing on July 17,
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`2020 issued in Csupo, et al. v. Alphabet, Inc., Case No. 19CV352557).5 The unpublished Csupo
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`5 The parties dispute whether California Rule of Court 8.1115(a) applies and if so, whether the rule
`prohibits plaintiffs from citing the Csupo order here. Nevertheless, the Court concludes that it
`properly may take judicial notice of the order, except as to facts stated therein that may be subject
`to reasonable dispute. Fed. R. Evid. 201; Bradford v. Flagship Facility Servs., Inc., No. 17-cv-
`01245-LHK, 2017 WL 3130072, at *1 n.1 (N.D. Cal. July 24, 2017).
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`order is not binding precedent, and this Court respectfully disagrees with its conclusion.6 The
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`Csupo court found analogous or persuasive several cases that this Court concludes are inapposite.
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`For example, in Welco Elecs., Inc. v. Mora, 223 Cal. App. 4th 202 (2014), the Court of
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`Appeals affirmed that the plaintiff had a property right in his credit card account where the
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`defendant obtained a specific amount of money through the use of the plaintiff’s credit card,
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`notwithstanding that the sums in question were not taken directly from the plaintiff, but through
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`the third-party credit card company. Welco Elecs, Inc., 223 Cal. App. 4th at 211-12. Fraudulent
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`credit card charges, however, immediately result in a discrete loss of a specific sum of money to
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`the credit card holder and corresponding indebtedness to the credit card company. By contrast, in
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`the present case, the complaint is devoid of allegations that plaintiffs’ right of access is or has been
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`diminished in any way by Google’s access to a cellular data network, whether through the
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`imposition of overage charges, throttled data speeds, or anything else. Insofar as plaintiffs
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`contend that their interest in “disgorging Google’s unjust enrichment” is sufficient under
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`Facebook Tracking Litigation to establish an injury sufficient to support a claim for conversion, as
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`well as Article III standing (see Dkt. No. 39 at 13-14), their arguments presuppose that a property
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`interest exists in the first place. For the reasons stated in this order, this Court concludes that no
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`such property right exists.