Case: 1:21-cv-00135 Document #: 210 Filed: 11/10/21 Page 1 of 16 PageID #:4121
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`Michael C. Wenzel, State Bar No. 215388
`BERTRAND, FOX, ELLIOT, OSMAN & WENZEL
`The Waterfront Building
`2749 Hyde Street
`San Francisco, California 94109
`Telephone: (415) 353-0999
`Facsimile: (415) 353-0990
`Email: mwenzel@bfesf.com
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`Attorneys for Defendant
`COUNTY OF ALAMEDA
`(erroneously sued as the ALAMEDA COUNTY DISTRICT ATTORNEY)
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF ILLINOIS
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`IN RE: CLEARVIEW AI, INC., CONSUMER
`PRIVACY LITIGATION
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`Case No. 1:21-cv-00135
`MDL No. 2967
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`COUNTY OF ALAMEDA’S MOTION FOR
`JUDICIAL DETERMINATION OF
`FRAUDULENT JOINDER OR, IN THE
`ALTERNATIVE, REMAND TO STATE COURT
`
`Hon. Sharon Johnson Coleman
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`DEFENDANT COUNTY OF ALAMEDA’S MOTION FOR DETERMINATION OF FRAUDULENT JOINDER
`In re: Clearview AI, Inc., Consumer Privacy Litigation, USDC Northern District of Illinois Case No. 1:21-cv-00135
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`Case: 1:21-cv-00135 Document #: 210 Filed: 11/10/21 Page 2 of 16 PageID #:4122
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`I.
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`INTRODUCTION
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`Defendant COUNTY OF ALAMEDA (erroneously sued as the ALAMEDA COUNTY
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`DISTRICT ATTORNEY) (the “COUNTY”) was fraudulently joined as a defendant along with
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`defendants ANTIOCH POLICE DEPARTMENT, ALAMEDA POLICE DEPARTMENT, and EL
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`SEGUNDO POLICE DEPARTMENT (“Municipal Defendants”) by Plaintiffs in order to destroy
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`diversity jurisdiction with CLEARVIEW AI, INC. (“CLEARVIEW”) and prevent removal of this case to
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`federal court. Alternatively, it is a non-consenting, non-diverse defendant and Plaintiff’s lawsuit should
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`properly be remanded to California state court. The COUNTY therefore respectfully requests a
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`determination from this Court that it was fraudulently joined, or, alternatively, that this case should be
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`remanded accordingly. The COUNTY agrees with and joins in the arguments contained in co-defendant
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`CLEARVIEW’s Notice of Removal (submitted herewith) that the COUNTY is a fraudulently joined
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`defendant under 28 U.S.C. § 1447(e). In addition to those arguments, the COUNTY provides additional
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`briefing regarding the lack of viability of Plaintiffs’ claims in light of the COUNTY’s status as a local
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`public entity of California, which further supports a finding of fraudulent joinder. However, if this Court
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`disagrees that the COUNTY was fraudulently joined, this case should be remanded pursuant to 28 U.S.C.
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`§ 1447(c).
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`II.
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`FACTUAL BACKGROUND AND PROCEDURAL HISTORY
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`For purposes of brevity and judicial economy, the COUNTY adopts and incorporates herein by
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`reference the Factual Background and Procedural History stated in CLEARVIEW’s Notice of Removal,
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`Document Number 1 filed in the Northern District Of California on June 14, 2021. (Notice of Removal
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`attached as Ex. 1 to Declaration of Michael C. Wenzel (“Wenzel Decl.”), at pp. 2:23-4:18.)
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`CLEARVIEW’s Notice of Removal succinctly recites the relevant factual and procedural history of
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`litigation between the parties up until the date this matter was removed.1 To briefly summarize, that
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`history includes the following notable events:
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`• On March 9, 2021, the same Plaintiffs to this matter, represented by the same counsel, filed a
`complaint in Alameda Superior Court asserting substantially identical facts and claims as set forth
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`1 In assessing a claim of fraudulent joinder, the court may “pierce” the pleadings and weigh evidence
`normally reserved for summary judgment and may even consider materials outside of the pleadings for
`the limited purpose of determining whether there are facts that support or negate the claim. (Padilla v.
`AT&T Corp., 697 F.Supp.2d 1156, 1158-1160 (C.D. CA 2009).)
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`DEFENDANT COUNTY OF ALAMEDA’S MOTION FOR DETERMINATION OF FRAUDULENT JOINDER
`In re: Clearview AI, Inc., Consumer Privacy Litigation, USDC Northern District of Illinois Case No. 1:21-cv-00135
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`Case: 1:21-cv-00135 Document #: 210 Filed: 11/10/21 Page 3 of 16 PageID #:4123
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`in this action against Clearview only (“Renderos I”). No public entities were initially named.
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`• On or about April 8, 2021, Clearview filed a Notice of Removal under 28 U.S.C. § 1332(a),
`removing Renderos I to the U.S. District Court, Northern District of California.
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`• On or about April 8, 2021, Plaintiffs filed an amended complaint in Renderos I, asserting new
`causes of action against Municipal Defendants who, like Plaintiffs, reside in California.
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`• Following removal of Renderos I, CLEARVIEW filed a notice of Potential Tag-Along Action
`with the Clerk of the JPML on or about April 13, 2021.
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`• On April 15, 2021, the Clerk of JPML entered a conditional transfer order to transfer Renderos I
`to MDL.
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`• Rather than amend their Complaint after the transfer to MDL, Plaintiffs dismissed Renderos I and
`re-filed the present action in California state court, naming the Municipal Defendants.
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`As the Court is aware, the operative Complaint in this matter was filed by Plaintiffs in the
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`Superior Court of California for the County of Alameda on April 22, 2021. (Dkt. Nos. 193-1, 193-2.) On
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`June 14, 2021, Defendant CLEARVIEW removed this case to the United States District Court for the
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`Northern District of California (without the consent of the COUNTY and other Municipal Defendants)
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`based, in part, on the grounds that the Municipal Defendants were fraudulently joined to defeat federal
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`diversity jurisdiction. (Dkt. Nos. 193-1, 193-3.) On October 5, 2021, this case was transferred to the
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`United States District Court for the Northern District of Illinois for its inclusion in MDL No. 2967. (Dkt.
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`No. 184). On October 20, 2021, Plaintiffs filed a motion to remand this case back to California Superior
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`Court. (Dkt. Nos. 192, 193).
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`III. LEGAL ARGUMENT
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`A.
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`The COUNTY Is Fraudulently Joined as a Defendant and Should Be Dismissed
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`As set forth fully in CLEARVIEW’s Notice of Removal, the COUNTY is a California
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`municipality belatedly added as a defendant after unexplained delay and suspect procedural tactics, and
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`the claims against the COUNTY are meritless and subject to dismissal. The Complaint shows no
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`common causes of action between CLEARVIEW and the COUNTY, and no facts sufficient to state a
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`claim against the COUNTY. The COUNTY agrees with CLEARVIEW that by dismissing their original
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`complaint after removal and conditional transfer to MDL and by re-filing a substantively identical
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`DEFENDANT COUNTY OF ALAMEDA’S MOTION FOR DETERMINATION OF FRAUDULENT JOINDER
`In re: Clearview AI, Inc., Consumer Privacy Litigation, USDC Northern District of Illinois Case No. 1:21-cv-00135
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`Case: 1:21-cv-00135 Document #: 210 Filed: 11/10/21 Page 4 of 16 PageID #:4124
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`complaint with threadbare claims against non-diverse Municipal Defendants, Plaintiffs appear to have
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`done so in an apparent attempt to circumvent the JPML’s Conditional Transfer Order (issued April 15,
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`2021) and to defeat diversity jurisdiction and ensure that this matter is litigated in state court.
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`Because Plaintiffs have constructively sought to join additional defendants after removal, the
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`COUNTY agrees with CLEARVIEW that this matter should be analyzed under 28 U.S.C. § 1447 (e),
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`and that the Court should deny joinder of the Municipal Defendants. The COUNTY adopts and
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`incorporates herein the briefing on these issues as stated in CLEARVIEW’s Notice of Removal including
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`that: 1) the Municipal Defendants are not needed for just adjudication; 2) the statute of limitations does
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`not preclude severance of claims; 3) there was an unexplained (or insufficiently explained) delay in
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`Plaintiffs’ joinder of the Municipal Defendants; 4) Plaintiffs’ motive in joining the Municipal Defendants
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`was to defeat federal jurisdiction; and 5) The strength of Plaintiffs’ claims against Municipal Defendants
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`is weak. (Wenzel Decl., Ex. 1 at p. 5:15-18:14.)
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`Even if Renderos I is disregarded and joinder analysis is limited to the current operative
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`Complaint, Plaintiffs’ inclusion of Municipal Defendants in this action is still improper. A plaintiff may
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`not “fraudulently” join an instate or non-diverse defendant solely for the purpose of defeating diversity
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`jurisdiction. When non-diverse defendants are joined in state court (before removal), fraudulent joinder
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`exists if: 1) there is no possibility that the plaintiff can state a cause of action against the non-diverse
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`defendant in state court; or 2) the plaintiff commits outright fraud in pleading jurisdictional facts.
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`(Hoosier Energy Rural Elec. v. Amoco Tax Leasing IV Corp., 34 F.3d 1310, 1315 (7th Cir.1994), citing
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`Gottlieb v. Westin Hotel Co., 990 F.2d 323, 327 (7th Cir. 1993).)
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`The common element of both standards is the strength or viability of the claims asserted against
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`the non-diverse defendant. Here, joinder is improper because Plaintiff cannot satisfy that element, which
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`is required under either standard. In other words, because Plaintiffs’ claims against the Municipal
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`Defendants are weak and there is no possibility that Plaintiffs can state a cause of action against the
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`COUNTY, joinder is improper and should be deemed fraudulent.2
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`///
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`2 As noted above, the COUNTY agrees with and incorporates herein the briefing on the remaining
`elements used to evaluate fraudulent joinder under 28 U.S.C. § 1407 (e) as stated in CLEARVIEW’s
`Notice of Removal (i.e., just adjudication, the statute of limitations, etc.).
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`DEFENDANT COUNTY OF ALAMEDA’S MOTION FOR DETERMINATION OF FRAUDULENT JOINDER
`In re: Clearview AI, Inc., Consumer Privacy Litigation, USDC Northern District of Illinois Case No. 1:21-cv-00135
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`Case: 1:21-cv-00135 Document #: 210 Filed: 11/10/21 Page 5 of 16 PageID #:4125
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`B.
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`Plaintiffs’ Claims against the COUNTY are Not Viable
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`As noted directly above, joinder of a non-diverse defendant will be deemed improper if there is
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`no possibility that Plaintiffs can state a cause of action against the COUNTY. (See also Steel v. Ford
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`Motor Company, No. 11–C00460, 2011 WL 1485380, at *3 n. 2 (N.D. Ill. Apr.19, 2011).)3 Plaintiffs’
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`Complaint asserts five causes of action for: (1) common law appropriation of likeness; (2) invasion of
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`Plaintiffs’ rights to privacy in violation of California Constitution Article 1, § 1; (3) violation of
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`California Business & Professions Code §§ 17200 et seq; (4) aiding and abetting a tort; and (5)
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`infringement on Plaintiffs’ liberty of speech in violation of California Constitution, Article 1, § 2. (Dkt.
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`Nos. 193-1, 193-2.) Only the fourth cause of action for aiding and abetting a tort and fifth cause of
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`action for infringement on Plaintiff’s liberty of speech are directed against the COUNTY.
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`As a preliminary matter, Plaintiffs’ claims against the COUNTY are unsupported by facts and
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`amount to mere conclusory allegations tenuously derived from a Buzzfeed News article published on the
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`World Wide Web. (Dkt. Nos. 193-1; 193-2 at ¶¶ 10, 73.) In this way, this case is not dissimilar from the
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`case of Lynch Ford, Inc. v. Ford Motor Co., Inc., which was previously decided by this Court. In Lynch,
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`an automobile franchise dealership was found to be a fraudulently joined defendant, joined in an attempt
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`to defeat diversity jurisdiction, in large part because the complaint alleged no wrongful conduct on the
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`part of the Defendant. (Lynch Ford, Inc. v. Ford Motor Co., Inc., 934 F.Supp. 1005 (N.D. Ill.1996).)
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`As expounded on below, Plaintiffs’ claims against COUNTY are far weaker than in Lynch, are
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`without merit, and would be subject to dismissal under established law.
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`1.
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`Aiding And Abetting A Tort
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`Plaintiffs’ fourth cause of action for aiding and abetting a tort fails for three reasons: (1) Plaintiffs
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`fail to allege compliance with the pre-litigation claims requirement necessary to bring an action against
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`Municipal Defendants; (2) Plaintiffs fail to identify a statutory basis for their “aiding and abetting” claim;
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`and (3) Plaintiffs fail to identify a tort theory upon which the COUNTY may be held liable.
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`a.
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`Plaintiffs Fail to Allege Compliance with the California Tort Claims Act
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`As discussed in detail below, tort liability of local public entities in California is governed by the
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`3 The COUNTY reserves its right to bring a motion to dismiss Plaintiffs’ Complaint under FRCP Rule
`12(b)(6) in the event that it remains a party to this action, and this action remains in federal court.
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`DEFENDANT COUNTY OF ALAMEDA’S MOTION FOR DETERMINATION OF FRAUDULENT JOINDER
`In re: Clearview AI, Inc., Consumer Privacy Litigation, USDC Northern District of Illinois Case No. 1:21-cv-00135
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`Case: 1:21-cv-00135 Document #: 210 Filed: 11/10/21 Page 6 of 16 PageID #:4126
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`California Tort Claims Act (hereinafter, “California Tort Claims Act” or “the Act”). (Cal. Govt. Code
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`§§ 810-996.6.) Under the Act, no action for “money or damages” may be maintained against a local
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`public entity unless a formal claim has been presented to such entity and has been rejected (or is deemed
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`rejected by the passage of time). (Cal. Govt. Code §§ 912.4, 945.4; see Munoz v. State of Calif. 33
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`Cal.App.4th 1767, 1776 (1995).)4 An action for “money or damages” includes all actions where the
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`plaintiff is seeking monetary relief, regardless of whether the action is founded in tort, contract, or some
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`other theory. (Hart v. Alameda Cnty., 76 Cal.App.4th 766, 778–79 (1999).) Compliance with the
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`prelitigation claims requirement constitutes an element of a cause of action for damages against a public
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`entity or official. (State v. Sup. Ct. (Bodde) 32 Cal.4th 1234, 1244 (2004).)
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`In addition to injunctive relief, Plaintiffs’ Complaint seeks compensatory damages, an award of
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`attorney’s fees and costs, and “any other relief as equity and justice may require.” (Dkt. Nos. 193-1; 193-
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`2, p. 23, “Prayer for Relief.”) Plaintiffs allege that they have expended resources to understand
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`CLEARVIEW’s actions, suffered loss and diminution in their property rights of their identities, images,
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`etc., and suffered mental anguish as a result of the alleged invasion of privacy. (Dkt. Nos. 193-1; 193-2,
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`p. 28, ¶ 70.) Plaintiffs further allege that they suffered “economic injury” as a result of CLEARVIEW’s
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`appropriation of likeness including the opportunity to profit by licensing use of their identities. (Dkt.
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`Nos. 193-1; 193-2, p. 18, ¶ 80.)
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`Plaintiffs’ claim for aiding and abetting clearly seeks “money or damages” as defined by the Act.
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`However, they fail to allege any facts demonstrating compliance with the prelitigation governmental
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`claims presentation requirements. Plaintiffs’ failure to allege compliance bars their claim for aiding and
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`abetting against the COUNTY and renders the viability of this cause of action non-actionable. (See
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`Bodde, 32 Cal.4th at 1239.)
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`b.
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`Plaintiffs Fail to Cite Any Statutory or Factual Basis For their Claim
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`The COUNTY is a public entity. Under the California Tort Claims Act, a public entity’s tort
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`liability must be based on statute and cannot rest on common law theories of liability. Section 815(a) of
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`the Act provides that, “Except as otherwise provided by statute, a public entity is not liable for an injury,
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`4 With few exceptions, the Act applies to every local public entity in the State including counties, cities,
`districts, public authorities, public agencies, “and any other political subdivision or public corporation” in
`the State. (See Cal. Govt. Code § 900 et seq.)
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`DEFENDANT COUNTY OF ALAMEDA’S MOTION FOR DETERMINATION OF FRAUDULENT JOINDER
`In re: Clearview AI, Inc., Consumer Privacy Litigation, USDC Northern District of Illinois Case No. 1:21-cv-00135
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`Case: 1:21-cv-00135 Document #: 210 Filed: 11/10/21 Page 7 of 16 PageID #:4127
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`whether such injury arises out of an act or omission of the public entity or a public employee or any other
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`person.” (Cal. Govt. Code § 815(a).) Governmental immunity is the rule unless liability is imposed by
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`statute. (Guzman v. County of Monterey (2009) 46 Cal.4th 887, 897; Eastburn v. Regional Fire
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`Protection Agency, 31 Cal.4th 1175, 1179-80 (2003); Dominguez v. Solano Irrigation Dist., 228
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`Cal.App.3d 1098, 1102 (1991).) Thus, in California, “all government tort liability must be based on
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`statute ...” [Emphasis added.] (Hoff v. Vacaville Unified School Dist., 19 Cal.4th 925, 932 (1998); Lopez
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`v. Southern Cal. Rapid Transit Dist., 40 Cal.3d 780, 785, fn. 2 (1985); Brown v. Poway Unified School
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`Dist., 4 Cal.4th 820, 829 (1993).)
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`Plaintiffs’ claim for aiding and abetting a tort is untenable because the Complaint identifies no
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`statutory basis for “aiding and abetting” or the underlying tort upon which the alleged aiding and abetting
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`is based. Plaintiffs’ failure to identify the statutory basis for either demonstrates the suspect nature of
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`their claims against the Municipal Defendants and is fatal to their chance of success in prevailing against
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`the COUNTY on this claim. (Mittenhuber v. City of Redondo Beach, 142 Cal.App.3d 1, 5 (1983); Lehto
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`v. City of Oxnard, 171 Cal.App.3d 285, 292-93 (1985) [failure to identify a statutory basis for liability is
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`fatal to a plaintiff’s complaint]; Washington v. County of Contra Costa, 38 Cal.App.4th 890 (1995)
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`[general allegations that a public entity breached a mandatory statutory duty are insufficient to withstand
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`a demurrer].)
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`Similarly, because liability of public entity defendants is entirely statutory, all causes of action
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`against public entity defendants must be pleaded with particularity. The California Supreme Court has
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`made clear that “under the Tort Claims Act all governmental tort liability is based on statute, the general
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`rule that statutory causes of action must be pleaded with particularity is applicable. Thus, ‘to state a
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`cause of action against a public entity, every fact material to the existence of its statutory liability must be
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`pleaded with particularity.’” (Lopez, 40 Cal.3d at 795, citing Mittenhuber, 142 Cal.App.3d at 5.)
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`Contentions, deductions or conclusions of facts and law are not proper pleading in actions against public
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`entities. (Blank v. Kirwan, 39 Cal.3d 311, 318 (1985).)
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`Plaintiffs’ claim for aiding and abetting is not pleaded with particularity and, in fact, fails to set
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`forth any facts supporting their claim. In California, liability for aiding and abetting an intentional tort
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`may be imposed if the person (a) knows the other’s conduct constitutes a breach of duty and gives
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`DEFENDANT COUNTY OF ALAMEDA’S MOTION FOR DETERMINATION OF FRAUDULENT JOINDER
`In re: Clearview AI, Inc., Consumer Privacy Litigation, USDC Northern District of Illinois Case No. 1:21-cv-00135
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`Case: 1:21-cv-00135 Document #: 210 Filed: 11/10/21 Page 8 of 16 PageID #:4128
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`substantial assistance or encouragement to the other actor, or (b) gives substantial assistance to the other
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`in accomplishing a tortious result and the person’s own conduct, separately considered, constitutes a
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`breach of duty to the third person. (IIG Wireless, Inc. v. Yi, 22 Cal.App.5th 630,653-654 (2018).)
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`However, liability will not be imposed where a party simply has a suspicion of wrongdoing or is aware
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`that a tort is being committed but takes no steps to prevent it. (Casey v. U.S. Bank, 127 Cal.App.4th 1138,
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`1147 (2005); Austin B. v. Escondido Union School Dist., 149 Cal. App. 4th 860, 879 (2007) [“Mere
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`knowledge that a tort is being committed and the failure to prevent it does not constitute aiding and
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`abetting”].) Moreover, courts will “carefully scrutinize” complaints that allege a defendant aided and
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`abetted a tort to determine whether the plaintiff has alleged facts that demonstrate the defendant made a
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`conscious decision to participate in the tortious activity. (Casey, 127 Cal.App.4th at 1152.)
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`Plaintiffs’ Claim for aiding and abetting is bereft of any factual support tying the COUNTY to
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`CLEARVIEW. Plaintiffs have alleged no facts showing that the COUNTY knew that CLEARVIEW’s
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`alleged conduct constituted a breach of duty in general or to Plaintiffs specifically. Likewise, Plaintiffs
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`have alleged no facts showing that the COUNTY gave “substantial” encouragement or assistance to
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`CLEARVIEW, or that such assistance, when considered alone, constitutes a separate tort.
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`Plaintiffs have argued in their Remand Motion that the Municipal Defendants aided and abetted
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`CLEARVIEW’s supposed violations of state and local California laws that “ban” facial recognition
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`technology, citing “bans” by the Cities of Alameda and the state of California. However, these “bans” do
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`not apply to the facts alleged in the Complaint. First, the California state “ban” is applicable only to
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`biometric surveillance systems in connection with an officer’s body camera and is therefore inapplicable
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`because the complaint does not allege that the municipal defendants used CLEARVIEW in connection
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`with body camera footage. (2019 California Assembly Bill No. 1215, California 2019-2020 Regular
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`Session, attached as Ex. 2 to Wenzel Decl.)
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`Second, the City of Alameda’s “ban” is a Resolution, not an ordinance, and is not binding.
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`(December 17, 2019, Council of City of Alameda Resolution 15625, attached as Ex. 3 to Wenzel Decl.)
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`The Resolution, by its own terms, applies to the City Council of the City of Alameda, only (i.e., it is a
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`stated policy preference) and any use of facial recognition technology by the City of Alameda is merely
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`at odds with that policy preference of the Alameda City Council, and is certainly not binding on other
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`7
`DEFENDANT COUNTY OF ALAMEDA’S MOTION FOR DETERMINATION OF FRAUDULENT JOINDER
`In re: Clearview AI, Inc., Consumer Privacy Litigation, USDC Northern District of Illinois Case No. 1:21-cv-00135
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`Case: 1:21-cv-00135 Document #: 210 Filed: 11/10/21 Page 9 of 16 PageID #:4129
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`Municipal Defendants, including the COUNTY.
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`c.
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`Plaintiffs Failed to Identify an Underlying Tort Theory for Which the
`COUNTY Can Be Held Liable.
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`Plaintiffs Complaint identifies no specific underlying tort theory upon which their claim for
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`“aiding and abetting” is based. That said, Plaintiffs have asserted only one tort claim in their Complaint -
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`common law appropriation of likeness. As a result, Plaintiffs’ second cause of action for violation of
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`California Constitution Art. 1, § 1 (privacy rights) and third cause of action for violation of California’s
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`Business & Professions Code §§ 17200 et seq. (statutory claim) are not directed against the COUNTY
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`(even indirectly) and cannot form the basis of their aiding and abetting claim against the COUNTY.5
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`In California, a common law misappropriation claim is pleaded by ‘alleging: “(1) the defendant’s
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`use of the plaintiff’s identity; (2) the appropriation of plaintiff’s name or likeness to defendant’s
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`advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury. [Citations.]”
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`(Maxwell v. Dolezal, 231 Cal.App.4th 93, 97 (2014).) The “appropriation” tort is essentially concerned
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`with protecting a “proprietary interest.” (See Comedy III Productions, Inc. v. Gary Saderup, Inc., 25
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`Cal.4th 387, 392 (2001); KNB Enterprises v. Matthews, 78 CA4th 362, 366-367, 92 CR2d 713, 717
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`(2000) [“What may have originated as a concern for the right to be left alone has become a tool to control
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`the commercial use and, thus, protect the economic value of one’s name, voice, signature, photograph, or
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`likeness.”])
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`Setting aside the speculative nature of Plaintiffs’ “resulting injury” in this case(e.g., lost
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`opportunity to profit by licensing use of their own identities), the imposition of tort liability for this
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`“common law” cause of action is antithetical to the California Tort Claims Act. As noted above, the Act
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`“abolishes all common law or judicially declared forms of liability for public entities, except for such
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`liability as may be required by the state or federal constitution.” (Forbes v. County of San Bernardino,
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`101 Cal.App.4th 48, 53 (2002), citing Creason v. State Dept. of Health Svcs., 18 Cal.4th 623, 630
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`(1998).) “As that language indicates, the intent of the Tort Claims Act is to confine potential
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`5 Indeed, California’s Business & Professions Code §§ 17200 et seq., which generally prohibits persons
`from engaging in unfair competition, applies only natural persons, corporations, firms, partnerships, joint
`stock companies, associations and other organizations of persons. (Cal. B&P Code § 17201.) It does not
`apply to public entities. (See City of Oakland v. Hassey, 163 Cal.App.4th 1477, 1503 (2008) [the City
`was not a “person” as set forth in Business and Professions Code §17201.])
`8
`DEFENDANT COUNTY OF ALAMEDA’S MOTION FOR DETERMINATION OF FRAUDULENT JOINDER
`In re: Clearview AI, Inc., Consumer Privacy Litigation, USDC Northern District of Illinois Case No. 1:21-cv-00135
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`Case: 1:21-cv-00135 Document #: 210 Filed: 11/10/21 Page 10 of 16 PageID #:4130
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`governmental liability, not expand it.” (Eastburn, 31 Cal.4th at 1179-80, citing Zelig v. Cnty. of Los
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`Angeles, 27 Cal.4th 1112, 1127 (2002).)
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`Plaintiffs have no chance of prevailing on this claim.
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`2.
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`Invasion of Right to Privacy
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`As noted above, Plaintiffs’ claim against CLEARVIEW alleging an invasion of Plaintiffs’ right to
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`privacy in violation of Article I, Section 1 of the California Constitution is not directed against the
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`COUNTY. Because Plaintiffs have asserted a privacy tort (common law appropriation of likeness), the
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`COUNTY addresses the weakness of Plaintiff’s right to privacy claim as well.
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`As an initial matter, the California Constitution “sets a high a bar for establishing an invasion of
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`privacy claim.” (In re Yahoo Mail Litig., 7 F. Supp. 3d 1016, 1038 (N.D. Cal. 2014).) For example, even
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`disclosures of highly sensitive personal information, including social security numbers and several forms
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`of cellular phone data, are not actionable on constitutional grounds under California jurisprudence.
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`(White v. Social Security Administration, 111 F.Supp.3d 1041 (N.D. Cal. 2015); In re iPhone Application
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`Litigation, 844 F.Supp.2d 1040 (N.D. Cal. 2012) [holding that alleged disclosure of mobile device user’s
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`unique identifier number, personal data, and geolocation information from the users’ devices does not
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`constitute an egregious breach of social norms, and therefore, was found to not violate the user’s right to
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`privacy under the California Constitution.]) To state a claim in spite of such hurdles, plaintiffs must
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`plead (1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the
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`circumstances; and (3) a serious invasion of privacy constituting “an egregious breach of ... social
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`norms.” (Hill v. Nat’l Collegiate Athletic Ass’n, 7 Cal.4th 1, 35–37 (1994).) In this case, Plaintiffs fail to
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`adequately plead any of these three required elements against the COUNTY.
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`First, Plaintiffs fail to allege any legally protected privacy interest. Two classes of privacy
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`interests legally protected under the California Constitution are: 1) the interest in precluding the
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`dissemination or misuse of sensitive and confidential information (‘informational privacy’) and 2) the
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`interest “in making intimate personal decisions or conducting personal activities without observation,
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`intrusion, or interference (‘autonomy privacy’). (Pioneer Elecs. (USA), Inc. v. Superior Ct., 40 Cal.4th
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`360, 370 (2007).) In regard to the first class, Plaintiffs do not allege facts showing an informational
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`interest relating to “the dissemination or misuse of sensitive and confidential information” that, if
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`9
`DEFENDANT COUNTY OF ALAMEDA’S MOTION FOR DETERMINATION OF FRAUDULENT JOINDER
`In re: Clearview AI, Inc., Consumer Privacy Litigation, USDC Northern District of Illinois Case No. 1:21-cv-00135
`
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`Case: 1:21-cv-00135 Document #: 210 Filed: 11/10/21 Page 11 of 16 PageID #:4131
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`disclosed, could cause “unjustified embarrassment or indignity.” Concerning the second class of
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`protected privacy interest, Plaintiffs have not demonstrated an autonomy interest that could foreclose
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`“observation” of or “intrusion” into their “intimate personal decisions” (Id.) Here, Plaintiffs have not
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`alleged that the COUNTY gathered and utilized Plaintiffs’ sensitive personal information with any
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`degree of specificity, if at all. Rather, Plaintiffs merely allege that Defendant CLEARVIEW created its
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`technology around the information of unspecified individuals from publicly accessible sources, such as
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`“websites like Facebook, Twitter, and Venmo.” (Dkt. Nos. 193-1; 193-2 at ¶ 3.) This allegation falls far
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`short of the high bar imposed on Plaintiffs’ claims under Article I, Section 1. Moreover, Plaintiffs
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`neglect to allege any facts whatsoever implicating the COUNTY in the aforementioned activity.
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`Second, Plaintiffs cannot establish that they had a reasonable expectation of privacy in their
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`photographs that were voluntarily and publicly posted on the Internet. To establish such an expectation,
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`“the plaintiff must have conducted himself or herself in a manner consistent with an actual expectation of
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`privacy” that is in accordance with broadly based and widely accepted community norms. (Moreno v.
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`Hanford Sentinel, Inc., 172 Cal.App.4th 1125, 1129 (Cal. Ct. App. 2009); In re Yahoo Mail Litig., 7
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`F.Supp.3d at 1016.) Plaintiffs have no expectation of privacy “once truthful information [is] publicly
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`revealed or in the public domain” and, thereafter, “a court may not constitutionally restrain its
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`publication.” (Smith v. Daily Mail Pub. Co., 443 U.S. 97, 103 (1979).) Under factual circumstances
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`comparable to this case, the court in Moreno dismissed the plaintiff’s constitutional privacy claim, which
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`was grounded on allegations that a newspaper invaded her privacy by disseminating content posted on
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`her Myspace page. (Id. at 1130.) The Moreno court concluded that “no reasonable person would have
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`had an expectation of privacy” under the circumstances, after the plaintiff’s “affirmative act” of
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`publishing the content online allowed it to be “available to any person with a computer and thus opened
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`it to the public eye.” (Id.; see also Guest v. Leis, 255 F.3d 325, 333 (6th Cir. 2001) [“users [of the
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`Internet] would logically lack a legitimate expectation of privacy in the materials intended for publication
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`or public posting.”]) Likewise, Plaintiffs here had no reasonable expectation of privacy over the
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`information they posted to publicly accessible forums on the Internet. (Dkt. Nos. 193-1; 193-2 at ¶¶ 12-
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`18.) This is reinforced by the fact that such expectation is not subjective, and therefore a plaintiff’s
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`consent is not as salient as the nature of the information in which he or she alleges a privacy interest. (In
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`DEFENDANT COUNTY OF ALAMEDA’S MOTION FOR DETERMINATION OF FRAUDULENT JOINDER
`In re: Clearview AI, Inc., Consumer Privacy Litigation, USDC