Case 5:21-cv-00570-BLF Document 45 Filed 02/18/22 Page 1 of 14
`
`
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`SAN JOSE DIVISION
`
`AMBASSADOR MARC GINSBERG and
`COALITION FOR A SAFER WEB,
`
`Plaintiffs,
`
`v.
`
`GOOGLE INC.,
`
`Defendant.
`
`
`
`Case No. 21-cv-00570-BLF
`
`
`ORDER GRANTING MOTION TO
`DISMISS FIRST AMENDED
`COMPLAINT WITHOUT LEAVE TO
`AMEND; AND DISMISSING ACTION
`WITH PREJUDICE
`
`[Re: ECF 23]
`
`
`
`Plaintiffs are former United States Ambassador Marc Ginsberg (“Ambassador Ginsberg”)
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`and an organization he created, Coalition for a Safer Web (“CSW”). CSW’s mission is to prevent
`
`terrorist and extremist groups from using social media platforms to further their agendas.
`
`Plaintiffs assert that such groups routinely use Telegram, an instant messaging app, to disseminate
`
`racist speech and incite violence against Jewish people and people of color. Plaintiffs seek to
`
`impose liability against Defendant Google Inc. (“Google”) based on the availability of Telegram
`
`in Google’s online Play Store. The operative first amended complaint (“FAC”)1 asserts claims
`
`against Google for negligent infliction of emotional distress and violations of California’s Unfair
`
`Competition Law (“UCL), Cal. Bus. & Prof. Code § 17200 et seq.
`
`
`1 Plaintiffs filed two FACs, one on June 8, 2021 (ECF 17) and the other on June 11, 2021
`(ECF 19). The Court’s references to the “FAC” herein are to the later-filed pleading (ECF 19), as
`the docket entry for that pleading indicates that it is a corrected version. Unfortunately, exhibits
`were omitted from the later-filed FAC (ECF 19). For the sake of efficiency, the Court has
`considered the exhibits attached to the earlier version of the FAC (ECF 17) rather than requiring
`Plaintiffs to refile the exhibits.
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 5:21-cv-00570-BLF Document 45 Filed 02/18/22 Page 2 of 14
`
`
`
`
`
`Google moves to dismiss the FAC under Federal Rule of Civil Procedure 12(b)(6) for
`
`failure to state a claim upon which relief may be granted. The Court has considered the parties’
`
`briefing, the oral arguments presented by counsel at the hearing on January 13, 2022, and the
`
`supplemental list of cases filed by Plaintiffs on January 21, 2022 with leave of the Court.
`
`
`
`The motion to dismiss is GRANTED WITHOUT LEAVE TO AMEND and the action is
`
`DISMISSED WITH PREJUDICE.
`
` I.
`
`BACKGROUND2
`
`
`
`Ambassador Ginsberg has had a notable career in public service and in the public eye. He
`
`has served as a White House liaison for the Secretary of State, a Deputy Senior Advisor to the
`
`President for Middle East Policy, and a United States Ambassador to Morocco. FAC ¶ 5. He was
`
`the first Jewish United States Ambassador to an Arab country. Id. ¶ 7. Ambassador Ginsberg has
`
`addressed Jewish groups in the United States and throughout the Arab world on the importance of
`
`Judaism and Israel, and he is involved with a number of synagogues in Maryland, where he
`
`resides. Id. ¶ 6. He has been subjected to two assassination attempts due to his religious beliefs.
`
`Id. ¶ 7.
`
`
`
`“Ambassador Ginsberg created the Coalition for a Safer Web to compel social media
`
`platforms to end their tolerance of anti-Semitism and their enabling of extremist groups to operate
`
`with impunity over social media.” FAC ¶ 8. CSW employs Ambassador Ginsberg and reimburses
`
`him for business use of his Android smartphone, a Samsung Galaxy Express. Id. ¶¶ 9, 13.
`
`Ambassador Ginsberg purchases Google products in part because of the apps available through the
`
`Google Play Store. Id. ¶ 25.
`
`
`
`Google requires that app developers comply with certain guidelines if they wish their apps
`
`to be available in the Play Store. Id. ¶ 27. Those guidelines include Google’s “Developer
`
`Program Policy” and written policies regarding “User Generated Content.” FAC Exhs. A, C, ECF
`
`17. Google publishes guidelines for developers online. FAC ¶ 27. Google’s Developer Program
`
`Policy advises app developers that Google does not allow: “apps that promote violence, or incite
`
`
`2 Plaintiffs’ factual allegations are accepted as true for purposes of the Rule 12(b)(6) motion. See
`Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008).
`2
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 5:21-cv-00570-BLF Document 45 Filed 02/18/22 Page 3 of 14
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`hatred against individuals or groups based on race or ethnic origin, religion . . . ”; “[a]pps that
`
`depict or facilitate gratuitous violence or other dangerous activities”; or “apps with content related
`
`to terrorism, such as content that promotes terrorist acts, incites violence, or celebrates terrorist
`
`attacks.” FAC Exh. A. Google’s guidelines regarding User Generated Content (“UGC”) requires
`
`that app developers define objectionable content in a way that complies with Google’s Developer
`
`Program Policy, and prohibit such content in the app’s terms of use or user policies. FAC Exh. C.
`
`Google advises that: “[a]pps whose primary purpose is featuring objectionable UGC will be
`
`removed from Google Play,” and “apps that end up being used primarily for hosting objectionable
`
`UGC, or that develop a reputation among users of being a place where such content thrives, will
`
`also be removed from Google Play.” Id.
`
`
`
`Plaintiffs allege that Google allows the Telegram app to be distributed through the Play
`
`Store even though the app does not comply with Google’s developer guidelines and routinely is
`
`used to transmit hate speech that violates California law. FAC ¶ 28. Telegram is a cloud-based
`
`mobile and desktop messaging app that allows users to create private groups of up to 200,000
`
`members, and to create public channels to broadcast to unlimited audiences. Id. ¶¶ 33-34.
`
`Telegram has been downloaded from the Google Play Store an estimated 500 million times
`
`worldwide. Id. ¶ 32. According to Plaintiffs, Telegram “is currently the most utilized messaging
`
`app among extremists who are promoting violence in the United States,” and “currently serves as
`
`the preferred Neo-Nazi/white nationalist communications channel, fanning anti-Semitic and anti-
`
`black incitement during the current wave of protests across America.” Id. ¶¶ 48, 52.
`
`
`
`Plaintiffs claim that Google is liable for failing to enforce its own developer guidelines and
`
`policies. According to Plaintiffs, “Google owes a duty of reasonable care to ensure that their
`
`services are not used as a means to inflict religious and racial intimidation,” and Google breached
`
`that duty “by continuing to host Telegram on the Google Play Store despite Defendant’s
`
`knowledge that Telegram was being used to incite violence, including violence against African
`
`Americans and Jews.” FAC ¶¶ 73, 80. Ambassador Ginsberg claims that the use of Telegram to
`
`promote violence against Jews generally has caused him to “live in apprehension of religiously
`
`motivated violence being perpetrated against him.” Id. ¶ 83.
`
`
`
`3
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 5:21-cv-00570-BLF Document 45 Filed 02/18/22 Page 4 of 14
`
`
`
`
`
`Plaintiffs filed the complaint in this action on January 25, 2021 and amended their
`
`complaint as of right in response to Google’s prior motion to dismiss. See Compl., ECF 1; FAC,
`
`ECF 19. The operative FAC asserts three claims: (1) negligent infliction of emotional distress
`
`(“NIED”); (2) violation of the unfair prong of California’s UCL; and (3) violation of the unlawful
`
`prong of California’s UCL. Google now brings a second motion to dismiss, directed to the FAC.
`
` II. LEGAL STANDARD
`
`
`
`“Under Rule 12(b)(6), a complaint should be dismissed if it fails to include ‘enough facts
`
`to state a claim to relief that is plausible on its face.’” Hyde v. City of Willcox, 23 F.4th 863, 869
`
`(9th Cir. 2022) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A complaint’s
`
`claims are plausible when the pleaded facts ‘allow[ ] the court to draw the reasonable inference
`
`that the defendant is liable for the misconduct alleged.’” Hyde, 23 F.4th at 869 (quoting Ashcroft
`
`v. Iqbal, 556 U.S. 662, 678 (2009)).
`
` III. DISCUSSION
`
`
`
`Google seeks dismissal of all claims asserted by Plaintiffs. First, Google argues that it is
`
`immune from suit under Section 230 of the Communications Decency Act of 1996 (“CDA”), 47
`
`U.S.C. § 230. Second, Google asserts that Plaintiffs lack standing to sue under the UCL. Third,
`
`Google argues that Plaintiffs have failed to allege essential elements of their NIED claim,
`
`specifically, duty and proximate cause. In opposition, Plaintiffs argue that Section 230 immunity
`
`does not apply, they have standing to sue under the UCL, and their NIED claim is adequately pled.
`
`
`
`For the reasons discussed below, the Court concludes that Plaintiffs’ claims are barred by
`
`Section 230 of the CDA, Plaintiffs have not alleged facts establishing standing to sue under the
`
`UCL, and Plaintiffs have not stated a claim for NIED.
`
`
`
`
`
`A.
`
`Section 230
`
`Section 230 of the CDA “protects certain internet-based actors from certain kinds of
`
`lawsuits.” Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1099 (9th Cir. 2009). Under the statute, “[n]o
`
`provider or user of an interactive computer service shall be treated as the publisher or speaker of
`
`any information provided by another information content provider.” 47 U.S.C. § 230(c)(1). “No
`
`cause of action may be brought and no liability may be imposed under any State or local law that
`
`4
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 5:21-cv-00570-BLF Document 45 Filed 02/18/22 Page 5 of 14
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`is inconsistent with this section.” 47 U.S.C. § 203(e)(3).
`
`
`
`In Barnes, the Ninth Circuit created a three-prong test for Section 230 immunity. See
`
`Dyroff v. Ultimate Software Grp., Inc., 934 F.3d 1093, 1097 (9th Cir. 2019) (discussing Barnes
`
`test). “Immunity from liability exists for ‘(1) a provider or user of an interactive computer service
`
`(2) whom a plaintiff seeks to treat, under a state law cause of action, as a publisher or speaker (3)
`
`of information provided by another information content provider.’” Id. (quoting Barnes, 570 F.3d
`
`at 1100-01). “When a plaintiff cannot allege enough facts to overcome Section 230 immunity, a
`
`plaintiff’s claims should be dismissed.” Id.
`
`
`
`
`
`
`
`1.
`
`Interactive Computer Service Provider
`
`Under the first prong of the Barnes test, the Court must determine whether Plaintiffs’
`
`allegations establish that Google is an interactive computer service provider. “Websites are the
`
`most common interactive computer services.” Dyroff, 934 F.3d at 1097; see also Fair Hous.
`
`Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1162 n.6 (9th Cir. 2008)
`
`(“Today, the most common interactive computer services are websites.”). Plaintiffs do not dispute
`
`that Google is an interactive computer service provider.
`
`
`
`
`
`
`
`The Court finds that the first prong of the Barnes test is satisfied.
`
`
`
`2.
`
`Seek to Treat as a Publisher or Speaker
`
`Under the second prong of the test, the Court must determine whether Plaintiffs’
`
`allegations show that Plaintiffs seek to treat Google as a publisher or speaker with respect to
`
`content on the Google Play Store. Google argues that Plaintiffs seek to treat it as a publisher,
`
`while Plaintiffs argue that they do not.
`
`
`
`“In this particular context, publication generally involve[s] reviewing, editing, and
`
`deciding whether to publish or to withdraw from publication third-party content.” Lemmon v.
`
`Snap, Inc., 995 F.3d 1085, 1091 (9th Cir. 2021) (internal quotation marks and citation omitted).
`
`“A defamation claim is perhaps the most obvious example of a claim that seeks to treat a website
`
`or smartphone application provider as a publisher or speaker, but it is by no means the only type of
`
`claim that does so.” Id. “[W]hat matters is whether the cause of action inherently requires the
`
`court to treat the defendant as the ‘publisher or speaker’ of content provided by another.” Barnes,
`
`5
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 5:21-cv-00570-BLF Document 45 Filed 02/18/22 Page 6 of 14
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`570 F.3d at 1102. A website acts as a publisher when it decides whether or not to post online
`
`material submitted for that purpose by a third party. See Roommates, 521 F.3d at 1170. “[A]ny
`
`activity that can be boiled down to deciding whether to exclude material that third parties seek to
`
`post online is perforce immune under section 230.” Id. at 1170-71.
`
`
`
`Here, Plaintiffs “seek[ ] damages and injunctive relief against Defendant Google LLC for
`
`allowing Telegram to be made available through Google’s Google Play Store.” FAC ¶ 1.
`
`Plaintiffs allege that “[b]y failing to remove Telegram from the Google Play Store, Defendant has
`
`proximately caused Ambassador Ginsberg’s emotional distress.” Id. ¶ 88. Google’s alleged
`
`activity boils down to deciding whether to exclude material (Telegram) that a third party seeks to
`
`place in the online Play Store. Thus, Plaintiffs’ claims inherently require the Court to treat Google
`
`as the publisher of content provided by another.
`
`
`
`Plaintiffs argue that their “claims are not premised on the nature of the third-party content
`
`involved in this case and thus are not premised on a publishing act by Google.” Opp. at 8-9, ECF
`
`34. Plaintiffs assert that their claims instead are premised on Google’s nonenforcement of its own
`
`guidelines. See id. Relying on Barnes, Plaintiffs contend that Section 230 does not insulate
`
`Google from its own wrongful conduct in failing to enforce its guidelines.
`
`
`
`In Barnes, the plaintiff’s ex-boyfriend posted profiles about her on a website operated by
`
`the defendant, Yahoo!, Inc. (“Yahoo”). See Barnes, 570 F.3d at 1098. The profiles included nude
`
`photographs of Barnes, solicitations to engage in sexual intercourse purporting to be from her, and
`
`contact information for her. See id. Barnes asked Yahoo to remove the unauthorized profiles over
`
`a period of several months, but Yahoo failed to do so. See id. Finally, a representative of Yahoo
`
`assured Barnes that the matter would be taken care of. See id. at 1099. After months without
`
`word or action from Yahoo, Barnes sued Yahoo for negligence and promissory estoppel, and at
`
`that point the profiles were removed. Id.
`
`
`
`The Ninth Circuit determined that Barnes’ negligence claim fell within the scope of the
`
`immunity afforded to Yahoo under Section 230, but her claim for promissory estoppel did not.
`
`See Barnes, 570 F.3d at 1105, 1109. The negligence claim was based on Oregon law providing
`
`that one who undertakes to render services to another may be subject to liability from his failure to
`
`6
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 5:21-cv-00570-BLF Document 45 Filed 02/18/22 Page 7 of 14
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`exercise reasonable care in that undertaking. See id. at 1102. Barnes argued that this theory
`
`“treat[ed] Yahoo not as a publisher, but rather as one who undertook to perform a service and did
`
`it negligently.” Id. The Ninth Circuit rejected this argument, concluding that Barnes could not
`
`“escape section 230(c) by labeling as a ‘negligent undertaking’ an action that is quintessentially
`
`that of a publisher.” Id. at 1103. The Barnes court pointed out that the undertaking Yahoo
`
`allegedly failed to perform with due care was the removal of the profiles from its website. See id.
`
`The Ninth Circuit pointed out that removing or failing to remove content is the act of a publisher,
`
`and thus that a claim based on such an act is barred by Section 230. See id.
`
`
`
`With respect to the promissory estoppel claim, however, the Ninth Circuit determined that
`
`Section 230 did not apply. See Barnes, 570 F.3d at 1109. Observing that promissory estoppel “is
`
`a subset of a theory of recovery based on a breach of contract,” the Ninth Circuit concluded that
`
`“Barnes does not seek to hold Yahoo liable as a publisher or speaker of third-party content, but
`
`rather as the counter-party to a contract, as a promisor who has breached.” Id. at 1106-07. The
`
`Ninth Circuit explained that “[c]ontract liability here would come not from Yahoo’s publishing
`
`conduct, but from Yahoo’s manifest intention to be legally obligated to do something, which
`
`happens to be removal of material from publication.” Id. at 1107.
`
`
`
`In the present case, Plaintiffs’ claims are akin to the negligence claim that the Barnes court
`
`found to be barred by Section 230. Plaintiffs’ theory is that by creating and publishing guidelines
`
`for app developers, Google undertook to enforce those guidelines with due care, and can be liable
`
`for failing to do so with respect to Telegram. As in Barnes, however, the undertaking that Google
`
`allegedly failed to perform with due care was removing offending content from the Play Store.
`
`“But removing content is something publishers do, and to impose liability on the basis of such
`
`conduct necessarily involves treating the liable party as a publisher of the content it failed to
`
`remove.” Barnes, 570 F.3d at 1103. Plaintiffs in the present case do not allege the existence of a
`
`contract – or indeed any interaction – between themselves and Google. Plaintiffs do not allege
`
`that Ambassador Ginsberg purchased his smartphone from Google or that he downloaded
`
`Telegram or any other app from the Play Store. Thus, the Barnes court’s rationale for finding that
`
`Section 230 did not bar Barnes’ promissory estoppel claim is not applicable here.
`
`7
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 5:21-cv-00570-BLF Document 45 Filed 02/18/22 Page 8 of 14
`
`
`
`
`
`
`
`
`
`Accordingly, the Court finds that the second prong of Barnes is satisfied.
`
`
`
`3.
`
`Information Provided by Another Content Provider
`
`Under the third prong of the Barnes test, the Court must determine whether Plaintiffs’
`
`allegations show that the published material was provided by another content provider. It is clear
`
`from the allegations of the FAC that the Telegram app was created by a third party, and that the
`
`alleged hate speech posted on Telegram also was created by third parties. FAC ¶¶ 29, 56-67.
`
`
`
`Plaintiffs argue that the third Barnes prong is not met because their “claims do not seek to
`
`hold Google liable purely for the actions of third parties.” Opp. at 10, ECF 34. Plaintiffs’
`
`argument that their claims are grounded in Google’s own wrongful conduct is addressed above
`
`under the second Barnes prong. The third Barnes prong focuses solely on who created the content
`
`at issue. Plaintiffs do not allege that Google helped to develop Telegram or created any of the
`
`online content giving rise to this lawsuit.
`
`
`
`Plaintiffs rely on Lemmon in arguing that the third Barnes prong is not satisfied. That
`
`reliance is misplaced. In Lemmon, the parents of two boys who died in a high-speed car accident
`
`sued Snap, Inc., a social media provider. See Lemmon, 995 F.3d at 1087. The boys had been
`
`using Snapchat’s “Speed Filter” shortly before the crash. See id. at 1088. Many Snapchat users try
`
`to reach 100 MPH, take a photo or video with the Speed Filter, and then share it on Snapchat. See
`
`id. at 1089. Some users suspect or believe that Snapchat will reward them for doing so. See id.
`
`The plaintiffs alleged that Snapchat’s Speed Filter encouraged their sons to drive at dangerous
`
`speeds and thus caused the boys’ deaths through its negligent design. See id. at 1088. The Ninth
`
`Circuit held that the plaintiffs’ negligent design claim – “a common products liability tort” – was
`
`not barred by Section 230, because the plaintiffs did not seek to hold Snap liable for its conduct as
`
`a publisher or speaker, but for its conduct as products manufacturer and designer. See id. at 1092.
`
`
`
`As an initial matter, Lemmon does not speak to the question presented by the third Barnes
`
`prong, whether the content at issue was created by a third party. Moreover, Plaintiffs in the
`
`present case do not allege a products liability claim or any other claim that would implicate the
`
`rationale of Lemmon.
`
`
`
`Accordingly, the Court finds that the third Barnes prong is satisfied.
`
`8
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 5:21-cv-00570-BLF Document 45 Filed 02/18/22 Page 9 of 14
`
`
`
`
`
`
`
`
`
`4.
`
`Conclusion Re Section 230
`
`Based on the facts alleged in the FAC, the Court finds that Google is entitled to Section
`
`230 immunity. Accordingly, the motion to dismiss is GRANTED as to all claims in the FAC.
`
`
`
`Even if Section 230 did not apply, Plaintiffs’ claims are subject to dismissal on other
`
`grounds, discussed as follows.
`
`
`
`
`
`B.
`
`UCL – Claims 2 and 3
`
`Claims 2 and 3 assert violations of California’s UCL. Google asserts that Plaintiffs’ UCL
`
`claims are subject to dismissal for lack of statutory standing. Plaintiffs contend that they have
`
`alleged statutory standing under the UCL.
`
`
`
` The UCL prohibits an individual or entity from engaging in any “unlawful, unfair or
`
`fraudulent business act or practice.” Cal. Bus. & Prof. Code § 17200. “Each prong of the UCL is
`
`a separate and distinct theory of liability.” Birdsong v. Apple, Inc., 590 F.3d 955, 959 (9th Cir.
`
`2009). A private person has statutory standing under the UCL only if he or she “has suffered
`
`injury in fact and has lost money or property as a result of the unfair competition.” Cal. Bus. &
`
`Prof. Code § 17204.
`
`
`
`Claim 2 is for violation of the unfair prong and Claim 3 is for violation of the unlawful
`
`prong. Both claims center on Ambassador Ginsberg’s purchase of an Android smart phone. The
`
`FAC alleges that “Ambassador Ginsberg purchased and uses a Samsung Galaxy Express for
`
`personal and professional purposes related to his work for CSW,” and that “Ambassador Ginsberg
`
`is to be reimbursed for all phone and data costs associated with his work with CSW.” FAC ¶ 102.
`
`Plaintiffs claim that “[a] portion of the cost of the Samsung Galaxy Express was related to the
`
`benefits provided under the terms of service and policies of Google.” Id. ¶ 103. Plaintiffs
`
`allegedly were “deprived of a key benefit of the purchase and use of the Samsung Galaxy
`
`Express” by Google’s allegedly unfair business practice of failing to follow its own policies and
`
`guidelines for developers. Id. ¶¶ 105-07. Google allegedly “has violated the ‘unfair’ prong of the
`
`UCL by not following their own policies and allowing Telegram to be downloaded despite the
`
`aforementioned violations of Google’s guidelines.” Id. ¶ 105. And, by continuing to allow
`
`Telegram to be downloaded from the Google Play Store, Google allegedly aids and abets
`
`9
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 5:21-cv-00570-BLF Document 45 Filed 02/18/22 Page 10 of 14
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`commission of criminal acts in violation of the unlawful prong of the UCL. Id. ¶ 119.
`
`
`
`Google asserts that Plaintiffs’ allegations are insufficient to establish the requisite
`
`economic harm, citing Birdsong. In Birdsong, the Ninth Circuit addressed the economic injury
`
`requirement for UCL standing in the context of a putative class action claim based on an alleged
`
`defect in Apple, Inc.’s iPod product. See Birdsong, 590 F.3d at 961. The iPod allegedly could
`
`produce sounds as loud of 115 decibels and therefore posed an unreasonable risk of noise-induced
`
`hearing loss to users. See id. at 957-58. The plaintiffs claimed that the iPods’ inherent risk of
`
`hearing loss reduced the value of the iPods and deprived them of the full benefit of their bargain
`
`because they could not “safely” listen to music. See id. at 961. The Ninth Circuit held that:
`
`[The plaintiffs] have not alleged that they were deprived of an agreed-upon benefit
`in purchasing their iPods. The plaintiffs do not allege that Apple made any
`representations that iPod users could safely listen to music at high volumes for
`extended periods of time. In fact, the plaintiffs admit that Apple provided a
`warning against listening to music at loud volumes. The plaintiffs’ alleged injury
`in fact is premised on the loss of a ‘safety’ benefit that was not part of the bargain
`to begin with.
`
`Id.
`
`
`
`In the present case, Plaintiffs have not alleged facts showing that Google’s compliance
`
`with its developer guidelines was an agreed-upon benefit of the phone purchase transaction.
`
`Plaintiffs do not allege that Ambassador Ginsberg purchased the phone from Google, so no such
`
`agreement could have been reached at the point of sale. Plaintiffs point to Google’s guidelines for
`
`app developers who distribute apps through the Play Store. However, Plaintiffs do not allege any
`
`basis for Ambassador Ginsberg’s apparent belief that Google’s enforcement of those guidelines
`
`was part of his bargain with whomever he purchased the smartphone from. Consequently,
`
`Plaintiffs have not plausibly alleged that Google’s alleged failure to enforce its guidelines for app
`
`developers, that is, failure to remove Telegram from the Play Store, caused Plaintiffs to suffer
`
`economic injury.
`
`
`
`At the closing of the hearing, the Court granted Plaintiffs leave to file case citations
`
`supporting their position on the UCL claims by January 21, 2022. On that date, Plaintiffs filed a
`
`list of three cases: Coffee v. Google, LLC, No. 20-CV-03901-BLF, 2021 WL 493387 (N.D. Cal.
`
`Feb. 10, 2021); Hawkins v. Kroger Co., 906 F.3d 763, 768 (9th Cir. 2018); and Johnson v.
`
`10
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 5:21-cv-00570-BLF Document 45 Filed 02/18/22 Page 11 of 14
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Mitsubishi Digital Elecs. Am., Inc., 365 F. App’x 830, 832 (9th Cir. 2010). See List of Requested
`
`Cases, ECF 44. All three cases were cited in Plaintiffs’ opposition brief and were considered by
`
`the Court prior to the hearing. None of the cases helps Plaintiffs here. In Coffee, this Court held
`
`that the plaintiffs had failed to allege economic injury arising from the purchase of virtual
`
`currency, and thus lacked standing to pursue their UCL claims, where they received all the “Lapis
`
`Crystals” and “dragon stones” for which they paid. Coffee, 2021 WL 493387, at *9. This Court
`
`held that “‘If one gets the benefit of his bargain, he has no standing under the UCL.’” Id. (quoting
`
`Johnson v. Mitsubishi Digital Elecs. Am., Inc., 365 F. App’x 830, 832 (9th Cir. 2010)). In
`
`Johnson, quoted in Coffee, the Ninth Circuit concluded that the plaintiff had failed to establish the
`
`requisite economic injury for UCL standing where he “sought the best 1080p television available
`
`at the time, for the best price,” and “[t]he record show[ed] that he got the benefit of his bargain.”
`
`Johnson, 365 F. App’x at 832. Nothing in Coffee or Johnson supports Plaintiffs’ assertion that
`
`they have alleged the requisite economic injury to pursue UCL claims in this case.
`
`
`
`In Hawkins, the Ninth Circuit held that the plaintiff had UCL standing where she alleged
`
`that she relied on a misrepresentation on a product label and would not have bought the product
`
`without the misrepresentation. See Hawkins, 906 F.3d at 768-69. Plaintiffs in the present case
`
`have not alleged a labeling claim or any other claim based on fraudulent misrepresentation. While
`
`Plaintiffs allege that Google failed to enforce its guidelines for developers, they do not allege that
`
`those guidelines constituted fraudulent misrepresentations. Nor could they do so, as the guidelines
`
`govern Google’s relationship with app developers, not with the general public. Plaintiffs do not
`
`allege that Google promised Android owners that the Google Play Store would be free of hate
`
`speech.
`
`
`
`In conclusion, the Court finds that Plaintiffs have failed to allege facts demonstrating that
`
`they suffered an economic injury as a result of Google’s allegedly unfair practice of failing to
`
`enforce its guidelines for app developers. For that reason, the motion to dismiss is GRANTED as
`
`to Claims 2 and 3.
`
`
`
`
`
`C.
`
`NIED – Claim 1
`
`Claim 1 is for NIED. “[T]he negligent causing of emotional distress is not an independent
`
`11
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 5:21-cv-00570-BLF Document 45 Filed 02/18/22 Page 12 of 14
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`tort but the tort of negligence.” Marlene F. v. Affiliated Psychiatric Med. Clinic, Inc., 48 Cal. 3d
`
`583, 588 (1989) (internal quotation marks and citation omitted). “The traditional elements of
`
`duty, breach of duty, causation, and damages apply.” Id. (internal quotation marks and citation
`
`omitted).
`
`
`
`“[B]usiness entities cannot recover emotional distress damages.” Geragos & Geragos
`
`Fine Arts Bldg., LLC v. Travelers Indem. Co. of Connecticut, No. 2:20-cv-04427-RGK-JPR, 2020
`
`WL 4048504, at *3 (C.D. Cal. July 20, 2020) (citing Templeton Feed & Grain v. Ralston Purina
`
`Co., 69 Cal. 2d 461, 468 (1968)). Accordingly, the Court considers Plaintiffs’ NIED claim only
`
`with respect to Ambassador Ginsberg.
`
`
`
`Google argues that Plaintiffs have not alleged facts establishing a duty or causation. The
`
`Court agrees.
`
`
`
`
`
`
`
`1.
`
`Duty
`
`Under California law, there is no general duty of reasonable care to prevent emotional
`
`distress. See Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 985 (1993). A duty of
`
`reasonable care “may be imposed by law, be assumed by the defendant, or exist by virtue of a
`
`special relationship.” Id. Plaintiffs allege that “[b]ecause Ambassador Ginsberg purchased
`
`Apple’s iPhone [sic], Google owes a duty of reasonable care to ensure that their services are not
`
`used as a means to inflict religious and racial intimidation.” FAC ¶ 73. The Court assumes that
`
`the reference to the iPhone was a typographical error, and that Plaintiffs intended to allege that
`
`Google owes a duty of reasonable care because Ambassador Ginsberg purchased an Android
`
`smartphone. Plaintiffs allege that “Defendant breached their duty by continuing to host Telegram
`
`on the Google Play Store despite Defendant’s knowledge that Telegram was being used to incite
`
`violence, including violence against African Americans and Jews.” Id. ¶ 80. As Google points
`
`out, however, the Ninth Circuit has held that “[n]o website could function if a duty of care was
`
`created when a website facilitates communication, in a content-neutral fashion, of its users’
`
`content.” Dyroff v. Ultimate Software Grp., Inc., 934 F.3d 1093, 1101 (9th Cir. 2019).
`
`Accordingly, Google does not owe a general duty to the public bases on its operation of the Play
`
`Store.
`
`12
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 5:21-cv-00570-BLF Document