Case 5:20-cv-07956-VKD Document 74 Filed 09/30/22 Page 1 of 13
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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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`Case No. 20-cv-07956-VKD
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`ORDER GRANTING DEFENDANT’S
`MOTION TO DISMISS FIRST
`AMENDED COMPLAINT WITHOUT
`LEAVE TO AMEND
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`Defendant.
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`Re: Dkt. No. 65
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`Defendant Google LLC (“Google”) moves pursuant to Rule 12(b)(6) to dismiss plaintiffs’
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`first amended complaint (“FAC”). Plaintiffs oppose the motion. Upon consideration of the
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`moving and responding papers,1 as well as the oral arguments presented, the Court grants
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`Google’s motion to dismiss without leave to amend.2
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`I.
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`BACKGROUND
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`Plaintiffs Joseph Taylor, Edward Mlakar, Mick Cleary, and Eugene Alvis, each of whom
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`are non-California residents and domiciliaries, filed this putative class action against Google,
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`asserting claims for conversion and quantum meruit based on alleged “passive” data transfers
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`performed by Google over its Android operating system. The alleged passive data transfers are
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`made without plaintiffs’ knowledge or consent, and at times when their mobile devices are idle,
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`1 In resolving the present motion, the Court finds it unnecessary to consider the various terms of
`service and policies Google submitted for judicial notice (Dkt. No. 65-1), or the declaration of
`Marc A. Wallenstein submitted in support of plaintiffs’ opposition (Dkt. No. 67-1). Google’s
`request for judicial notice is denied as moot.
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` 2
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` 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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`Case 5:20-cv-07956-VKD Document 74 Filed 09/30/22 Page 2 of 13
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`stationary, untouched and with all applications closed.3 Plaintiffs assert their conversion and
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`quantum meruit claims for themselves and on behalf of a putative class of “[a]ll natural persons in
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`the United States (excluding citizens of the State of California) who have used mobile devices
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`running the Android operating system to access the internet through cellular data networks
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`operated by mobile carriers.” Dkt. No. 60 ¶ 84.4 Plaintiffs invoke federal jurisdiction under the
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`Class Action Fairness Act, 28 U.S.C. § 1332(d). Id. ¶ 18.
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`On October 1, 2021, the Court granted Google’s motion to dismiss the original complaint,
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`with limited leave to amend. Google moved to dismiss that complaint pursuant to Rule 12(b)(1),
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`arguing that plaintiffs lack Article III standing to pursue their claims because they did not allege
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`facts indicating that they have suffered any injury. Even if plaintiffs have standing, Google argued
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`that dismissal was warranted under Rule 12(b)(6) because the complaint failed to allege sufficient
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`facts supporting claims for conversion or quantum meruit. Dkt. No. 33. With respect to their
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`Article III standing, the Court noted that no plaintiff alleged any facts demonstrating injury, i.e.,
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`that he was charged an overage fee or experienced throttled connection speeds. Dkt. No. 51 at 5.
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`The Court nonetheless addressed Google’s Rule 12(b)(6) motion to dismiss the conversion and
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`quantum meruit claims, finding that the issue of plaintiffs’ Article III standing was intertwined
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`with the parties’ dispute about whether the complaint stated plausible claims for relief. Id. at 6.
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`The Court dismissed the conversion claim, finding that plaintiffs did not allege facts
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`demonstrating that their “cellular data allowances” are personal property capable of exclusive
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`possession or control. Id. at 7-13. The Court dismissed the quantum meruit claim as merely
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`derivative of the conversion claim. Id. at 13-15. Although plaintiffs did not articulate any
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`additional facts that could be alleged on amendment to support a plausible claim for conversion,
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`the Court nonetheless granted leave to amend that claim. The Court also gave plaintiffs leave to
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`3 The Court assumes the parties’ familiarity with the general background facts as described in its
`prior order on Google’s motion to dismiss plaintiffs’ original complaint (Dkt. No. 51 at 1-3) and
`does not repeat those facts in this order.
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` 4
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` There is a parallel proceeding pending in the Santa Clara County Superior Court concerning a
`putative class of California citizens, Csupo, et al. v. Alphabet, Inc., Case No. 19CV352557.
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`Case 5:20-cv-07956-VKD Document 74 Filed 09/30/22 Page 3 of 13
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`amend their quantum meruit clam to the extent plaintiffs believed they plausibly could assert such
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`a claim based on their cellular data allowances. Id. at 15. However, plaintiffs were not given
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`leave to amend their quantum meruit claim based on the alleged use of “personal information,”
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`because they “not only failed to articulate additional facts that could be asserted on amendment,
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`but have also not explained why they did not plead those allegations in their original complaint.”
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`Id.
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`Plaintiffs’ FAC names an additional plaintiff, Jennifer Nelson, identified as a resident and
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`domiciliary of Wisconsin who has a data plan that requires her to pay a fixed price for up to one
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`gigabyte of data per month, plus an additional charge for each additional gigabyte of data she uses
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`in that month. See Dkt. No. 60 ¶ 16. The FAC reasserts a conversion claim, this time based on
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`the theory that “cellular data” (rather than “cellular data allowances”) is property subject to
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`conversion. Id. ¶¶ 3-4, 28-34. The FAC also reasserts a quantum meruit claim, which plaintiffs
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`contend is not a common count and is not derivative of their conversion claim. See id. ¶¶ 3, 5, 10,
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`77-83, 92-99. In plaintiffs’ view, “[e]ither cellular data is property subject to conversion, or it is a
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`contractual right of access to a service subject to quantum meruit. It may even be both—but it
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`must at least be one or the other.” Id. ¶ 5; see also Dkt. No. 67 at 1.
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`Google contends that the FAC must be dismissed pursuant to Rule 12(b)(6) because
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`plaintiffs still fail to state sufficient facts supporting a plausible claim for conversion or quantum
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`meruit. Although Google does not directly challenge plaintiffs’ standing, Google maintains that
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`plaintiffs have not alleged any facts demonstrating that they personally suffered any concrete
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`injury resulting from Google’s alleged conduct. See Dkt. No. 65 at 10 n.4.
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`II.
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`LEGAL STANDARD
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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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`Case 5:20-cv-07956-VKD Document 74 Filed 09/30/22 Page 4 of 13
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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. Khoja v. Orexigen Therapeutics, 899 F.3d 988, 998 (9th Cir. 2018); Coto
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`Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010).
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`III. DISCUSSION
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`A.
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`Conversion
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`“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.”). Courts apply a three-part test to determine whether a
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`property right exists: “First, there must be an interest capable of precise definition; second, it must
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`be capable of exclusive possession or control; and third, the putative owner must have established
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`Case 5:20-cv-07956-VKD Document 74 Filed 09/30/22 Page 5 of 13
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`a legitimate claim to exclusivity.” GS Rasmussen, 958 F.2d at 903 (footnotes omitted).
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`“Although the question was once the matter of some controversy, California law now holds that
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`property subject to a conversion claim need not be tangible in form; intangible property interests,
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`too, can be converted.” Voris v. Lampert, 7 Cal. 5th 1141, 1151 (2019); see also Kremen v.
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`Cohen, 337 F.3d 1024, 1033 (9th Cir. 2003) (stating that insofar as “California retains some
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`vestigial merger requirement, it is clearly minimal, and at most requires only some connection to a
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`document or tangible object[.]”).
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`In their original complaint, plaintiffs’ conversion claim asserted a property right in “their
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`purchased data allowances” created by contract with their respective service providers. See Dkt.
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`No. 1 ¶¶ 6, 27, ¶ 60.b., 63. The Court dismissed the conversion claim because plaintiffs did not
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`allege facts demonstrating exclusive possession of the “purchased data allowances” for which they
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`contract:
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`Although plaintiffs argue that their data plans confer
`ownership of “[p]urchased [b]ytes of [c]ellular [d]ata” (Dkt. No. 39
`at 14), they have not plausibly alleged facts demonstrating a right to
`exclusive access to unique or specific bytes of data. Rather, the
`complaint’s allegations indicate that plaintiffs’ data allowances
`provide them with a contractual right to access their service
`provider’s cellular data network—a right that is not exclusive of
`others’ rights to access the same network. Plaintiffs confirm that
`they “use the term ‘data allowances’ to refer to the quantity of
`cellular data bytes that they have purchased” through contracts with
`their respective service providers. Dkt. No. 39 at 16 n.5. In other
`words, a data allowance provides subscribers, such as plaintiffs,
`with a contractual right of access to a service, i.e., access to a service
`provider’s cellular data network that enables users “to send and
`receive information over the internet without a Wi-Fi connection.”
`See Dkt. No. 1 ¶ 24. For some subscribers that right of access is
`limited to a certain volume of data transmission per month
`(measured in bytes of data), and for others it is unlimited. See Dkt.
`No. 1 ¶¶ 8-11. In any event, that right of access is not exclusive of
`others’ right of access to the same network, and no subscriber
`possesses or controls a particular byte or bytes of data in the
`network. Indeed, plaintiffs acknowledge that the purported property
`right of access to a cellular data network grants them the ability to
`access “quantities of cellular data available to all of [a carrier’s]
`customers.” Dkt. No. 39 at 17.
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`Dkt. No. 51 at 9.
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`The FAC now bases the conversion claim on a purported property right in “cellular data,”
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`rather than “cellular data allowances,” and alleges that “[c]ellular data is property subject to
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`conversion because, just like electricity or water, cellular data is capable of exclusive possession.”
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`Dkt. No. 60 ¶¶ 3-4, 28-34.
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`The omission of “allowances” from the description of the claimed property interest does
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`not change the nature of that alleged property interest or plaintiffs’ claim, which continues to rest
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`on their contractual right of access to a service that is measured in bytes of data. As noted above,
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`plaintiffs previously confirmed that they used “the term ‘data allowances’ to refer to the quantity
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`of cellular data bytes that they have purchased’ through contracts with their respective service
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`providers.” Dkt. No. 51 at 9 (citing Dkt. No. 39 at 16 n.5) (emphasis added). Plaintiffs have not
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`persuasively demonstrated that they are using the term “cellular data” any differently now. The
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`FAC states that “cellular data” does not include a users’ underlying personal information, but
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`rather “describes the transmission of such information over cellular networks charged against
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`consumers’ cellular data plans.” Dkt. No. 60 ¶ 11 (emphasis added). This definition of “cellular
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`data” refers to both the means of transmission of information over a cellular network and the
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`measurement of that use of the cellular network, and thus appears to be identical to “cellular data
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`allowance” alleged in the original complaint.
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`Plaintiffs nonetheless contend that even though all customers have non-exclusive access to
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`their carriers’ cellular network, cellular data is “capable of exclusive possession and control
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`because it represents a unique quantum of energy that, once used, is gone.” Dkt. No. 60 ¶ 73.
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`Plaintiffs further assert that because cellular carriers’ networks do not have infinite bandwidth,
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`“the energy used to transmit a quantum of information over a cellular network is unique” and
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`“cannot be consumed for transmission of a different byte.” Id. ¶ 72. Plaintiffs argue that cellular
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`data thus is analogous to the consumption of electricity and cite authority indicating that electricity
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`is considered property under California law. See id. ¶¶ 63-76; see also Terrace Water Co. v. San
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`Antonio Light & Power Co., 1 Cal. App. 511, 513 (1905).
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`The FAC’s allegations, however, indicate that a user does not actually possess cellular data
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`until the user sends or receives a transmission of information. See Dkt. No. 60 ¶ 70 (“Similarly,
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`when a customer consumes cellular data, the information [sic] the customer deprives others of the
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`ability to consume that exact same cellular data.”); ¶ 71 (“One user’s use and attribution of cellular
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`data prevents another user (or Google) from using that same cellular data.”); ¶ 72 (“Once a
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`network consumes the energy needed to move a particular byte from an Android phone to
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`Google’s servers, the same energy cannot be consumed for transmission of a different byte.”).
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`Thus, as in the original complaint, the FAC suggests that there is nothing that customers possess
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`that is separate and apart from their use of a particular or unlimited quantum of access to the
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`network, which is measured in these bytes of data—i.e., a right of access that is entirely defined by
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`their respective contracts with their cellular carriers. The FAC’s allegations concerning an
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`authentication process using SIM (subscriber identity module) cards and IMEI (international
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`mobile equipment identity) numbers does not change that conclusion. Indeed, the FAC indicates
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`that SIM cards and IMEI numbers are simply a way in which a customer’s use of cellular data is
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`measured. See id. ¶ 66 (“These unique identifiers allow carriers to precisely meter the amount of
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`cellular data that each wireless device has consumed.”). For the reasons discussed in the Court’s
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`prior order dismissing plaintiff’s conversion claim, the Court again concludes that “the benefits of
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`contractual rights are not personal property capable of conversion.” Monster Energy co. v. Vital
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`Pharm., Inc., No. EDCV 18-1882 JGB (SHKx), 2019 WL 2619666, at *13 (C.D. Cal. May 20,
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`2019) (citing cases); see also Boon Rawd Trading Int’l Co. Ltd. v. Paleewong Trading Co. Inc.,
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`688 F.Supp.2d 940, 955 (N.D. Cal. 2010) (concluding that exclusive importation right “is an
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`intangible contractual right protected under contract law, not tort law.”).
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`In any event, the FAC still does not allege facts that any plaintiff suffered any injury.
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`While the FAC alleges that carriers have moved toward providing customers with unlimited data
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`plans, the FAC continues to assert that “[u]sers with limited data plans are typically charged an
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`overage fee if they use more data than they have purchased in a given month” and that users with
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`unlimited data plan may be “throttled” and experience reduced connection speeds and impaired or
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`lost phone functions. See Dkt. No. 60 ¶¶ 31, 73. Yet nowhere does the FAC allege that any
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`plaintiff had to pay more money for data or suffered a degradation in service because of Google’s
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`alleged passive data transfers. Indeed, at oral argument plaintiffs stated that they could not allege
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`such facts because they do not know whether they have been negatively affected by Google’s
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`alleged conduct. See Dkt. No. 73 at 28:24-29:6; see also Dkt. No. 60 ¶ 31.
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`Google’s motion to dismiss plaintiffs’ conversion claim is granted.
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`B.
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`Quantum Meruit
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`Plaintiffs maintain that if their cellular data plans provide a right of access to a service, and
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`not property subject to conversion, then Google’s alleged passive transfers necessarily must be
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`subject to a claim for quantum meruit. Dkt. No. 60 ¶ 5; see also Dkt. No. 67 at 1. The parties
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`disagree whether the quantum meruit claim, as pled in the FAC, is merely derivative of the
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`conversion claim. Google contends that the quantum meruit claim is a common count that falls
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`with plaintiffs’ conversion claim. Dkt. No. 65 at 16-18; Dkt. No. 68 at 7-11. Plaintiffs argue that
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`their quantum meruit claim is not pled as a common count. They further contend that the quantum
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`meruit claim is sufficiently pled as a separate and independent claim for relief based on a theory
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`that cellular data represents a right of access to a service. See Dkt. No. 67 at 9-15.
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`Even assuming that the FAC does not plead quantum meruit as a common count that is
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`merely derivative of plaintiffs’ conversion claim, the Court agrees that plaintiffs have not
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`sufficiently pled an independent claim for relief.
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`“Quantum meruit refers to the well-established principle that ‘the law implies a promise to
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`pay for services performed under circumstances disclosing that they were not gratuitously
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`rendered.’” Huskinson & Brown v. Wolf, 32 Cal. 4th 453, 458 (2004) (quoting Long v. Rumsey
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`(1938) 12 Cal. 2d 334, 342 (1938)). “To recover in quantum meruit, a party need not prove the
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`existence of a contract, but it must show the circumstances were such that the services were
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`rendered under some understanding or expectation of both parties that compensation therefor was
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`to be made.” Id. (internal quotations and citations omitted).
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`Noting that quantum meruit is not the same as an implied-in-fact contract, plaintiffs
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`contend that California law does not require plausible allegations of an expectation of payment for
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`services to sustain a claim for quantum meruit. Dkt. No. 67 at 2-4. Quantum meruit, often
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`referred to as quasi-contract, is indeed distinct from a contract implied in fact. “Unlike the ‘quasi-
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`contractual’ quantum meruit theory which operates without an actual agreement of the parties, an
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`implied-in-fact contract entails an actual contract, but one manifested in conduct rather than
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`expressed in words.” Maglica v. Maglica, 66 Cal. App. 4th 442, 455 (1998). However, the Court
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`disagrees that a claim for quantum meruit does not require an expectation of compensation.
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`Plaintiffs’ argument is based on a mischaracterization of In re De Laurentiis Entm’t Group, Inc.,
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`963 F.2d 1269 (9th Cir. 1992). In De Laurentiis, the National Broadcasting Co. (“NBC”) sought
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`to recover in quantum meruit the reasonable value of advertising, contracted through an
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`intermediary and provided to the De Laurentiis Entertainment Group, for which NBC had not been
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`paid. The Ninth Circuit held that the law does “not require that a plaintiff expect compensation
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`from the defendant himself in order to prove a quantum meruit claim.” Id. at 1273. Drawing a
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`distinction between quantum meruit and implied-in-fact contracts, the Ninth Circuit further
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`explained that “[t]o require a plaintiff seeking quantum meruit recovery to prove that the parties
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`intended that the defendant compensate her directly for her services would conflate quantum
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`meruit with implied-in-fact contracts by requiring the plaintiff to prove an implicit agreement to
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`pay for services.” Id. (emphasis added). “The whole point of quantum meruit recovery is to
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`compensate plaintiffs who have provided a benefit to defendants but who do not have a contract—
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`express or implied—with those defendants.” Id. To the extent plaintiffs contend that De
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`Laurentiis stands for the principle that no expectation of compensation is required at all, their
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`arguments are not persuasive. See Chavez v. City of Hayward, No. 14-cv-00470-DMR, 2015 WL
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`3562166 at *6 n.6 (N.D. Cal. June 8, 2015) (“In De Laurentiis, the Ninth Circuit held that a
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`plaintiff is not required to ‘expect compensation from the defendant himself in order to prove a
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`quantum meruit claim’ under California law. Instead, a plaintiff may recover under a quantum
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`meruit theory even when he or she expected payment or compensation from a different party, and
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`not from the defendant.”) (quoting De Laurentiis, 963 F.2d at 1273).
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`Plaintiffs are not aided by their reliance on Precision Pay Phones v. Qwest Commc’ns
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`Corp., 210 F. Supp. 2d 1106 (N.D. Cal. 2002) or Jordan v. Wonderful Citrus Packing LLC, No.
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`1:18-CV-00401-AWI-SAB, 2018 WL 4350080 (E.D. Cal. Sept. 10, 2018). The circumstances in
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`both cases indicate that there was an expectation of compensation for the services in question. See
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`Jordan, 2018 WL 4350080 at *2 (stating that the defendant employer allowed employees to use its
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`field workers and farming goods for the employees’ personal farms, but required that employees
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`pay the employer for those workers and goods); Precision Pay Phones, 210 F. Supp. 2d at 1109
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`(noting the passage of laws enacted “to ensure that [payphone service providers] would get paid
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`for use of their payphones for ‘dial-around’ calls to non-contracted [interexchange carriers]” and
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`which required the Federal Communications Commission to establish “‘a per call compensation
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`plan to ensure that all payphone service providers are fairly compensated for each and every
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`completed intrastate and interstate call using their payphone.’”) (quoting 47 U.S.C.
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`§ 276(b)(1)(A)). Here, plaintiffs do not allege that they expected compensation for services (i.e.
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`passive data transfers) provided to Google or that Google had knowledge of circumstances
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`indicating that plaintiffs did not intend to provide such services without compensation. By
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`contrast, in Precision Pay Phones the complaint reflected that the defendant “has acquired benefits
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`conferred by Plaintiff with full knowledge of the circumstances,” which included regulations
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`requiring payment and the plaintiff’s invoices specifically requesting payment. See 210 F. Supp.
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`2d at 1109-1110, 1112. Similarly, in Jordan the employer’s allegations detailed not only its
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`expectation of compensation, but also the circumstances showing that the employee knew of his
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`employer’s expectation and “deceitfully” took his employer’s field labor and farming goods so as
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`to avoid compensating the employer. See 2018 WL 4350080 at *2, *4. Plaintiffs argue that they
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`could not be expected to plead an expectation of compensation because they did not know, and
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`could not have known, about Google’s passive data transfers. See Dkt. No. 73 at 49:13-14.
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`However, this argument is not particularly helpful here where the complaint does not plausibly
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`allege that anyone (including Google) had knowledge of circumstances giving rise to an
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`expectation of compensation owed to plaintiffs.
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`Equally unpersuasive is plaintiffs’ contention that an expectation of compensation is an
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`affirmative defense for which Google bears the burden of proof. Indeed, one of plaintiffs’ cited
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`cases reaffirms the general principle, stated by the California Supreme Court in Huskinson, that to
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`recover in quantum meruit, “a party need not prove the existence of a contract [citations], but it
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`must show the circumstances were such that the services were rendered under some understanding
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`or expectation of both parties that compensation therefor was to be made.’” Miller v. Campbell,
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`Warburton, Fitzsimmons, Smith, Mendel & Pastore, 162 Cal. App. 4th 1331, 1344 (2008) (quoting
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`Huskinson, 32 Cal. 4th at 458). Miller also affirms that “[t]he burden is on the person making the
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`quantum meruit claim to show the value of his or her services and that they were rendered at the
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`request of the person to be charged.” Id.
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`Plaintiffs point out that Miller further noted that “unless the parties are near relatives, the
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`recipient of the services has the burden to prove the defense that the services were rendered
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`gratuitously or without obligation on his part to pay.” Id. (citing Sowash v. Emerson, 32 Cal. App.
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`13, 18 (1916)). The Court does not read Miller and Sowash as establishing a general rule that an
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`expectation of compensation is an affirmative defense to be raised and proved by the defendant.
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`Both Miller and Sowash concerned disputes over services of a “special” nature, allegedly rendered
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`outside the services for which the parties expressly contracted. See Miller, 162 Cal. App. 4th at
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`1344 (stating, in dispute over legal services rendered to executor of estate allegedly in her
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`individual capacity, that “a defense that the work was performed under a special contract is
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`affirmative in character and the recipient the services has the burden of proof”) (emphasis added);
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`Sowash, 32 Cal. App. at *14 (noting that plaintiff’s claims concerned personal care services “of a
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`special character” that allegedly were not part of the parties’ contract for room and board).
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`Indeed, Sowash, too, affirms that facts should always be pleaded that the services in question were
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`not performed gratuitously. See Sowash, 32 Cal. App. at 17 (“If the pleaded facts show, as should
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`always be shown or pleaded to avoid the implication that the services were to be performed
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`gratuitously, that there was an agreement by one of the parties to employ the personal services of
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`another, and it is further shown that there was no agreement as to the compensation to be paid for
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`such services, then an implied, and not an express, contract is disclosed, and to recover thereon the
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`plaintiff must count upon a quantum meruit, or sue for the reasonable value of his services, or, as
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`the words describing that common count plainly signify, for whatever his services may reasonably
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`deserve or merit.”) (emphasis added). Plaintiffs argue that, at most, they need only show that
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`services were not intended to be gratuitous—a showing that they claim is significantly different
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`from affirmatively proving an expectation of compensation. But plaintiffs merely state two sides
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`of the same requirement: if services are not rendered gratuitously, then compensation is expected.
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`See De Laurentiis, 963 F.2d at 1273 (“Compensation must be ‘expected’ only in the sense that the
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`services rendered must not have been intended to be gratuitous.”).
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`Even assuming that the FAC’s allegations, viewed most favorably to plaintiffs, gives rise
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`to an inference that plaintiffs did not intend to allow Google to gratuitously use their cellular data,
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`Google maintains that, more fundamentally, plaintiffs’ “grievances simply do not fit this
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`framework of quantum meruit.” Dkt. No. 68 at 11. Indeed, plaintiffs have not pled facts
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`demonstrating that they provided a service to Google in the sense contemplated by a quantum
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`meruit theory. At oral argument, plaintiffs asserted that “[t]he services rendered are the cellular
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`data,” i.e., “[t]he right of access” to cellular networks that plaintiffs say they acquire through their
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`contracts with their cellular carriers. See Dkt. No. 73 at 40. Although plaintiffs allege that
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`Android users may “explicitly grant others access to their cellular data by creating a mobile
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`‘hotspot,’” and “can also sell unused cellular data” (Dkt. No. 60 ¶ 34), there is no allegation that
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`plaintiffs provided any such “services” to Google. It is therefore difficult to construe the passive
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`data transfers of which plaintiffs complain as “services rendered by” plaintiffs, as opposed to
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`services rendered by the carriers themselves.
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`In any event, the fact remains that the FAC does not allege that all plaintiffs, who each
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`have separate data plans with various cellular carriers, were affe