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`EXHIBIT 1
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`JENNER & BLOCK LLP
`Kate T. Spelman (Cal. Bar No. 269109)
`kspelman@jenner.com
`633 West 5th Street, Suite 3600
`Los Angeles, CA 90071
`Telephone:
`(213) 239-5100
`Facsimile:
`(213) 239-5199
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`Attorney for Defendant
`Clearview AI, Inc.
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF CALIFORNIA
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`STEVEN RENDEROS, VALERIA THAIS,
`SUÁREZ ROJAS, REYNA MALDONADO,
`LISA KNOX, MIJENTE SUPPORT
`COMMITTEE, and NORCAL RESIST FUND,
`
`Plaintiffs,
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`v.
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`CLEARVIEW AI, INC., ALAMEDA COUNTY
`DISTRICT ATTORNEY, ALAMEDA POLICE
`DEPARTMENT, EL SEGUNDO POLICE
`DEPARTMENT, ANTIOCH POLICE
`DEPARTMENT, and DOES 1-10
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`Case No.
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`CLEARVIEW AI, INC.’S NOTICE OF
`REMOVAL
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`[County of Alameda Superior Court
`Case No. RG21096898]
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`Defendants.
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`TO THE CLERK OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
`DISTRICT OF CALIFORNIA, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD:
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`PLEASE TAKE NOTICE that Defendant Clearview AI, Inc. (“Clearview”) hereby effects the
`removal of this action from the Superior Court of the State of California for the County of Alameda
`(“County of Alameda Superior Court”) to the United States District Court for the Northern District of
`California. Removal is proper under 28 U.S.C. § 1332(a) because the properly joined parties have complete
`diversity of citizenship and the amount in controversy exceeds $75,000. Venue is proper in this Court
`because it is the “district and division embracing the place where [the] action is pending.” 28 U.S.C. §
`1441(a). Pursuant to 28 U.S.C. § 1446(a), a true and correct copy of the state court case file is attached to
`this Notice of Removal and is incorporated by reference herein. The file includes all process, pleadings,
`motions, and orders filed in this case, including the Summons and Complaint (Ex. 1) and all other
`documents filed in the state court (Ex. 2).
`FACTUAL BACKGROUND AND STATE COURT PROCEEDINGS
`1.
`This action is one of many filed against Clearview in courts across the country—from
`California to Illinois to New York—based on nearly identical allegations and asserting substantively
`identical theories of relief. Specifically, nine federal lawsuits filed against Clearview have been transferred
`for coordinated multidistrict litigation (“MDL”) proceedings before Judge Sharon Johnson Coleman in the
`United States District Court for the Northern District of Illinois (the “MDL Court”). See In Re: Clearview
`AI, Inc., Consumer Privacy Litigation, MDL No. 2967. The consolidated MDL action has a putative
`California subclass that includes Plaintiffs here and asserts the same claims against Clearview. Plaintiffs
`are desperately attempting to keep their case in state court and avoid having their case transferred into the
`MDL action, but there can be no doubt that diversity jurisdiction exists here.
`2.
`On April 22, 2021, Plaintiffs filed this Complaint in the County of Alameda Superior Court
`against Clearview and four California-based government entities (the “Municipal Defendants”). Plaintiffs
`allege that Clearview downloads the images of millions of individuals from the Internet, extracts biometric
`information from these images, and then uses artificial intelligence technology to analyze the information
`and create a so-called “faceprint” of these individuals. This, in turn, allegedly allows Clearview users to
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`upload a “probe image” to the Clearview application and learn certain information about the person in the
`probe photo, which Plaintiffs allege permanently deprives individuals of their anonymity and privacy and
`disproportionately misidentifies people of color. See Ex. 1, ¶¶ 29-40.
`3.
`Plaintiffs also allege that the Municipal Defendants are four of the thousands of users of the
`Clearview application, but Plaintiffs allege almost nothing about these Municipal Defendants except that
`they used Clearview’s technology. Ex. 1, ¶¶ 6, 73-75. As described below, the inclusion of the Municipal
`Defendants in the current iteration of the Complaint was designed solely to defeat diversity jurisdiction.
`4.
`On March 9, 2021, the same Plaintiffs, represented by the same counsel, filed an earlier
`complaint in the County of Alameda Superior Court alleging substantively identical facts and claims
`against Clearview, which was then the only named defendant. See Renderos, et al. v. Clearview AI, Inc.
`et al., Alameda Sup. Ct. Case No. RG21091138. Attached to this Notice of Removal, and incorporated by
`reference herein, is a copy of that previously-filed complaint (Ex. 3). The thrust of the prior complaint—
`much like the instant action and other similar actions already pending in the MDL—was that Clearview’s
`conduct allegedly violated Plaintiffs’ right to privacy and unlawfully misappropriated their likenesses.
`5.
`In that proceeding, on April 8, 2021, Clearview timely filed a notice of removal under 28
`U.S.C. § 1332(a), removing the case to the United States District Court for the Northern District of
`California. See Renderos et al. v. Clearview AI, Inc. et al., 4:21-CV-02567 (DMR) (N.D. Cal.), Dkt. 1.
`6.
`After removal was effectuated, Plaintiffs informed Clearview for the first time that Plaintiffs
`had faxed an amended complaint to the Clerk of the County of Alameda Superior Court prior to the filing
`of the notice of removal. Attached to this Notice of Removal, and incorporated by reference herein, is a
`copy of the amended complaint in Renderos, et al. v. Clearview AI, Inc. et al., Alameda Sup. Ct. Case No.
`RG21091138 (Ex. 4). Plaintiffs did not serve this amended complaint on Clearview until after Clearview
`filed its notice of removal.
`7.
`In a transparent attempt to defeat diversity jurisdiction, Plaintiffs’ amended complaint
`named several California-based government entities as defendants—the same Municipal Defendants now
`named as defendants in the instant proceeding. See Ex. 4. However, because Clearview was not served
`with the amended complaint (or even aware of it) until after Clearview filed its notice of removal,
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`Clearview properly removed the original and operative complaint. The law is clear on this point. See, e.g.,
`Goldberg v. Cameron, No. 5:15-CV-02556-RMW, 2015 WL 5316339, at *3 (N.D. Cal. Sept. 11, 2015)
`(“Because the amended complaint [was] not served by the time defendants filed the notice of removal, the
`original complaint was the operative complaint in the case.”), aff’d 694 F. App’x 564 (9th Cir. 2017);
`Noorazar v. BMW of N. Am., LLC, No. 18-CV-02472 W (JLB), 2019 WL 442477, at *2 (S.D. Cal. Feb. 5,
`2019) (“[I]n California an amended complaint supersedes the original for the purpose of removal only
`when served upon the affected defendant. A contrary rule would vitiate the removal statute and allow for
`procedural manipulation.”).
`8.
`Following removal of the original action to the Northern District of California, Clearview
`filed a Notice of Potential Tag-Along Action with the Clerk of the JPML on April 13, 2021, identifying
`the matter for transfer to the MDL Court in the Northern District of Illinois, where numerous similar actions
`had been consolidated for pre-trial proceedings. In Re: Clearview AI, Inc., Consumer Privacy Litigation,
`MDL No. 2967, Dkt. 53. On April 15, 2021, the Clerk of the JPML entered a conditional transfer order to
`transfer the case to the MDL Court. In Re: Clearview AI, Inc., Consumer Priv. Litig., MDL No. 2967, Dkt.
`55. The conditional transfer order observed that the matter involved “questions of fact that are common to
`the actions previously transferred” and assigned to the MDL Court. Id.
`9.
`After the MDL transfer was complete, Plaintiffs could have sought leave to amend their
`complaint to join the Municipal Defendants. But instead, in a transparent effort to avoid the MDL Court,
`Plaintiffs immediately and voluntarily dismissed their complaint altogether. See Renderos et al. v.
`Clearview AI, Inc. et al., 4:21-CV-02567 (N.D. Cal.), Dkt. 7.
`10.
`One week later, on April 22, 2021, the same group of Plaintiffs represented by the same
`counsel refiled their Complaint in state court, alleging the same facts and claims against Clearview. See
`Ex. 1. This Complaint is substantively duplicative of Plaintiffs’ aborted amended complaint in the prior
`Renderos action. See Ex. 4. And just like their prior amended complaint, the Complaint names several
`California-based government entities as defendants in an attempt to defeat diversity jurisdiction and avoid
`removal and transfer to the MDL Court. See Ex. 1, ¶¶ 22-25.
`11.
`Also on April 22, 2021, Plaintiffs filed a Notice of Related Case, identifying the instant
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`proceeding as “related” to Renderos, et al. v. Clearview AI, Inc. et al., Alameda Sup. Ct. Case No.
`RG21091138, which was the prior action filed by Plaintiffs, later removed to federal court and voluntarily
`dismissed. In the Notice of Related Case, Plaintiffs indicated that the two cases “arise[] from the same or
`substantially identical transactions, incidents, or events requiring the determination of the same or
`substantially identical questions of law or fact.” See Ex. 2, Notice of Related Case. The Notice of Related
`Case also identified the instant proceeding as “related” to Renderos et al. v. Clearview AI, Inc. et al., 4:21-
`CV-02567 (DMR) (N.D. Cal.).
`12.
`Based on this procedural history, it is clear that the refiled Complaint is, practically and
`constructively, nothing more than an amendment to Plaintiffs’ original complaint in Renderos, et al. v.
`Clearview AI, Inc., Alameda Sup. Ct. Case No. RG21091138.
`13.
`In the Complaint, Plaintiffs allege three causes of action against Clearview for common law
`appropriation of likeness, violation of Article I, Section 1 of the California Constitution, and violation of
`California’s Unfair Competition Law. These allegations and causes of action are identical to those in
`Plaintiffs’ original complaint and amended complaint in Renderos, et al. v. Clearview AI, Inc., Alameda
`Sup. Ct. Case No. RG21091138. Compare Ex. 1, ¶¶ 69-83 with Ex. 3, ¶¶ 76-87 and Ex. 4 ¶¶ 77-88.
`Further, these claims are virtually identical to and subsumed within the claims alleged against Clearview
`by the California subclass of the MDL. See Consolidated Class Action Complaint, In Re: Clearview AI,
`Inc., Consumer Priv. Litig., 1:21-cv-00135 (N.D. Ill.), Dkt. 29.
`14.
`Plaintiffs allege two separate and distinct causes of action against the Municipal Defendants
`for aiding and abetting a tort and violation of Article I, Section 2(a) of the California Constitution. See Ex.
`1, ¶¶ 91-98. These allegations and causes of action are identical to those in Plaintiffs’ amended complaint
`in Renderos, et al. v. Clearview AI, Inc., Alameda Sup. Ct. Case No. RG21091138. See Ex. 4, ¶¶ 92-99.
`15.
`Plaintiffs seek injunctive relief, compensatory damages (including emotional distress
`damages), attorneys’ fees, and other relief as equity and justice may require. See Ex. 1, Prayer for Relief.
`REMOVAL IS PROPER UNDER 28 U.S.C. § 1332(A)
`16.
`Pursuant to 28 U.S.C. § 1332(a), federal courts have original jurisdiction over all cases in
`which the amount in controversy exceeds $75,000 and is between “citizens of different States.” Under 28
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`U.S.C. § 1441(a), any such action may be removed to the district court for the district and division
`embracing the place where the action is pending.
`I.
`There Is Complete Diversity Of Citizenship Between The Properly Joined Parties
`17.
`The individual Plaintiffs are citizens of California. According to the Complaint, Plaintiffs
`Renderos, Suárez, and Knox are residents of Alameda County, and Plaintiff Maldonado is a resident of
`Oakland, which is also in Alameda County. Ex. 1, ¶¶ 12-16.
`18.
`The corporate Plaintiffs, NorCal Resist Fund and Mijente Support Committee, are citizens
`of California and Arizona, respectively. According to the complaint, Plaintiff NorCal Resist Fund is a
`California corporation, and Plaintiff Mijente Support Committee is an Arizona corporation. Ex. 1, ¶¶ 16-
`17.
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`19.
`Clearview is a citizen of Delaware and New York because it is a Delaware corporation with
`its principal place of business in New York. Ex. 1, ¶ 19.
`20.
`Because Plaintiffs and Clearview—the only properly joined defendant—are citizens of
`different states, there is complete diversity of citizenship under 28 U.S.C. § 1332(a)(1).
`II.
`The Municipal Defendants Are Fraudulently Joined Under 28 U.S.C. § 1447(E)
`21.
`The Municipal Defendants are fraudulently joined in this action, and their citizenship should
`be disregarded for purposes of removal. Ritchey v. Upjohn Drug Co., 139 F.3d 1313, 1318 (9th Cir. 1998)
`(holding that fraudulently joined defendants do not defeat diversity jurisdiction).
`22.
`As discussed above, a substantively identical action was previously filed in the County of
`Alameda Superior Court and properly removed to federal court in Renderos et al. v. Clearview AI, Inc. et
`al., 4:21-cv-02567 (DMR) (N.D. Cal.). After removal, Plaintiffs served Clearview with an amended
`complaint that fraudulently joined several California-based government agencies as defendants.1 See Ex.
`4. But before the amended complaint was served on Clearview, the JPML entered a conditional transfer
`order to transfer the case to the MDL Court, at which point Plaintiffs voluntarily dismissed the action.
`23.
`Almost immediately following that dismissal, Plaintiffs refiled the same amended
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`1 A defendant is permitted to “introduce evidence beyond the pleadings to establish fraudulent joinder.”
`Rivas v. Target Corp., No. ED-CV-19-905-DMG (SPx), 2019 WL 3237375, at *2 (C.D. Cal. July 18,
`2019) (citing Ritchey, 139 F.3d at 1318).
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`complaint as a new (but “related”) proceeding. See Ex. 1. Courts have criticized this practice of voluntarily
`dismissing and refiling a complaint to add fraudulently joined parties and have recognized it for what it is:
`a “brazen” attempt at forum-shopping. See Welk v. GMAC Mortg., LLC, 850 F. Supp. 2d 976, 981, 999
`(D. Minn. 2012) (criticizing plaintiffs’ counsel for fraudulently joining non-diverse defendants in a state
`court action, and—following removal and denial of plaintiffs’ remand motion—choosing to “‘remand’ the
`case himself by voluntarily dismissing it and refiling it in state court within a day or two, thereby starting
`the process all over again.”), aff’d, 720 F.3d 736 (8th Cir. 2013). The current Complaint is therefore
`constructively an amendment to the previously-filed complaint in Renderos, et al. v. Clearview AI, Inc. et
`al., Alameda Sup. Ct. Case No. RG21091138.
`24. Where a plaintiff “amends her complaint after removal to add a diversity destroying
`defendant”—as Plaintiffs did here by refiling a substantively identical Complaint—courts analyze the
`joinder of new parties under 28 U.S.C. § 1447(e). Greer v. Lockheed Martin, 10-CV-1704 JF HRL, 2010
`WL 3168408, *3-4 (N.D. Cal. Aug. 10, 2010). Specifically, § 1447(e) provides that, “[i]f after removal
`the plaintiff seeks to join additional defendants whose joinder would destroy subject matter jurisdiction,
`the court may deny joinder.” 28 U.S.C. § 1447(e).
`25.
`Courts consider several factors when deciding whether to permit or deny joinder under 28
`U.S.C. § 1447(e), including: (1) whether the party sought to be joined is needed for just adjudication; (2)
`whether the statute of limitations would prevent the filing of a new action against the new defendant in
`state court; (3) whether there has been an unexplained delay in seeking to join the new defendant; (4)
`whether plaintiff seeks to join the new party to defeat federal jurisdiction; and (5) the strength of the claims
`against the new defendant. Greer, 2010 WL 3168408, at *4. Courts may also consider a sixth factor, the
`prejudice to the plaintiff if joinder is not permitted. Waring v. Geodis Logistics LLC, 19-CV-4415-GW-
`KSX, 2019 WL 3424955, at *6 (C.D. Cal. July 29, 2019). And additional factors can include “the closeness
`of the relationship between the new and the old parties, the effect of an amendment on the court’s
`jurisdiction, and the new party’s notice of the pending action.” In re Outlaw Lab., LP Litig., 3:18-CV-
`1882-GPC-BGS, 2020 WL 434477, at *4 (S.D. Cal. Jan. 28, 2020) (quoting Desert Empire Bank v. Ins.
`Co. of N. Am., 623 F.2d 1371, 1375 (9th Cir. 1980)).
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`Every one of these factors supports a finding of fraudulent joinder.2
`26.
`A.
`The Municipal Defendants Are Not Needed for Just Adjudication
`27.
`As to the first factor, “courts generally disallow joinder of non-diverse defendants where
`those defendants are only tangentially related to the cause of action or would not prevent complete relief.”
`Jones v. Thyssenkrupp Elevator, C-05-3539 EMC, 2005 WL 8177458, at *17 (N.D. Cal. Dec. 22, 2005)
`(citation omitted). Here, the Municipal Defendants are “only tangentially related” because the Complaint
`contains nothing more than a handful of conclusory allegations against them. None of the Municipal
`Defendants is an “indispensable party” or “necessary for just adjudication” of Plaintiffs’ claims against
`Clearview—rather, the refiled Complaint alleges completely new claims against the Municipal Defendants
`that are separate and distinct from Plaintiffs’ claims against Clearview. Id.
`28.
`In fact, “it is not clear that [the Municipal Defendants’] conduct arises from the same
`transaction or occurrence as the conduct animating . . . the underlying suit” and their joinder “seems almost
`an afterthought to the instant [Complaint].” Outlaw Lab., 2020 WL 434477, at *5. The entire focus of the
`Complaint is that Clearview allegedly “scraped” images from Internet websites, captured “biometric
`signature[s]” from those images, and sold access to a database containing that “biometric” information.
`Ex. 1, ¶¶ 2-5. However, the Municipal Defendants are not alleged to be involved in any of this alleged
`conduct. Id. ¶¶ 73-75.
`29.
`It is therefore “unlikely that requiring Plaintiff[s] to sue [the Municipal Defendants] in state
`court would not allow Plaintiff[s] and [Clearview] to reach a complete and just resolution in federal
`court”—particularly where the allegations and claims involved are distinct, and separate lawsuits would
`not “lead to wholly or even mostly redundant actions.” Waring, 2019 WL 3424955, at *4 (denying a
`motion to remand based on attempted joinder of non-diverse parties). Accordingly, this factor weighs in
`favor of a finding that the Municipal Defendants were fraudulently joined and that removal is proper.
`
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`2 Even if the Court concludes that the 28 U.S.C. § 1447(e) standard does not apply to the joinder analysis
`here because Plaintiffs’ refiled their Complaint anew (after voluntarily dismissing the prior action, rather
`than properly amending their complaint before the MDL Court), the Court should still find the Municipal
`Defendants were fraudulently joined because, as explained below in ¶¶ 37-57, Plaintiffs: (1) fail to state a
`cause of action against them and (2) the failure is obvious according to the settled case law of the state.
`McCabe v. Gen. Foods Corp., 811 F.2d 1336, 1339 (9th Cir. 1987).
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`B.
`The Statute of Limitations Does Not Preclude Severance of the Claims
`30.
`The second factor involves an assessment of whether the statute of limitations would
`preclude an original action in state court against the fraudulently joined defendants. Id. As of the date of
`this Notice of Removal, a separate suit against the Municipal Defendants in state court would not be time-
`barred.
`31.
`“The statute of limitations for a cause of action for aiding and abetting a tort generally is
`the same as the underlying tort.” Am. Master Lease LLC v. Idanta Partners, Ltd., 225 Cal. App. 4th 1451,
`1478 (Cal. Ct. App. 2014). Plaintiffs do not allege an underlying tort, Ex. 1, ¶¶ 92-95, but to the extent
`they do, the underlying tort would be one of the claims against Clearview. Of those, the statute of
`limitations for a claim of common law appropriation of likeness is two years, Christoff v. Nestle USA, Inc.,
`213 P.3d 132, 135 (Cal. 2009); it is one year for a claim of invasion of privacy under Article I, Section 1
`of the California Constitution, Cain v. State Farm Mut. Auto. Ins. Co., 62 Cal. App. 3d 310, 313 (Ct. App.
`1976), and four years for an Unfair Competition Law claim, Cal. Bus. & Prof. Code § 17208. The Article
`I, Section 2(a) claim has a statute of limitations of one year. Gatto v. County of Sonoma, 98 Cal. App. 4th
`744, 760 (Cal. Ct. App. 2002).
`32.
`There are no factual allegations in the Complaint suggesting that the limitations period has
`elapsed for either claim against the Municipal Defendants in the few weeks since the Complaint was filed.
`Because a separate state court action would not be time-barred any more the instant action is, this factor
`weighs against the joinder of the Municipal Defendants.
`C.
`There Was Unexplained Delay in Plaintiffs’ Joinder of the Municipal Defendants
`33.
`As to the third factor of whether Plaintiffs delayed in seeking to join the non-diverse parties,
`“the timing of joining [the Municipal Defendants] is suspect.” Waring, 2019 WL 3424955, at *4. After
`attempting to amend their prior complaint to join the non-diverse Municipal Defendants, Plaintiffs
`voluntarily dismissed their prior complaint immediately after the entry of JPML’s conditional transfer
`order. Then, Plaintiffs refiled a substantively identical Complaint and named the same Municipal
`Defendants they had previously tried (and failed) to join through an amended complaint in their prior
`action. Such gamesmanship should not be tolerated.
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`34.
`Nor do Plaintiffs have a “good reason for why the claims against” the Municipal Defendants
`were not brought in their original complaint. Id. That is because “all the facts now alleged” in the
`Complaint regarding the Municipal Defendants “were known” or available to Plaintiffs when they first
`filed their prior complaint, and the substantively identical refiled Complaint “is not based on newly
`discovered evidence.” Jones, 2005 WL 8177458, at *21. “This factor weighs against joinder.” Id.
`D.
`Plaintiffs’ Motive in Joining the Municipal Defendants Was to Defeat Federal
`Jurisdiction
`35.
`Courts recognize that the most important factor in this analysis is Plaintiffs’ motive to defeat
`diversity jurisdiction. See Bakshi v. Bayer Healthcare, LLC, C07-00881 CW, 2007 WL 1232049, at *4-5
`(N.D. Cal. Apr. 26, 2007). “A trial court should look with particular care at a plaintiff’s motive in removal
`cases, when the presence of a new defendant will defeat the court’s diversity jurisdiction and will require
`a remand to the state court.” Waring, 2019 WL 3424955, at *5 (citation omitted). “In such cases, a plaintiff
`may well be inclined to add a new defendant only to have his action remanded to the state forum, the one
`that he had originally chosen as best suited to his purposes.” Ommid v. Liberty Mut. Ins. Co., 3:18-CV-
`0486-L-WVG, 2018 WL 6191392, at *3 (S.D. Cal. Nov. 27, 2018) (quoting Desert Empire Bank, 623 F.2d
`at 1376-77).
`36.
`As discussed in detail above, the procedural history of this litigation, the “unexplained
`delay” in asserting the new claims against the Municipal Defendants, and the suspect “timing” of Plaintiffs’
`refiled Complaint—“coming after removal” and after their voluntary dismissal of the prior proceeding—
`“suggest[] an intent to defeat federal jurisdiction.” Jones, 2005 WL 8177458, at *21. This factor weighs
`heavily against joinder of the Municipal Defendants.
`E.
`Plaintiffs’ Claims against the Municipal Defendants Are Not Viable
`37.
`The fifth factor requires an analysis of the strength of the claims against the newly joined
`defendants. Here, Plaintiffs allege two causes of action against the Municipal Defendants for aiding and
`abetting a tort and violation of Article I, Section 2(a) of the California Constitution. See Ex. 1, ¶¶ 91-98.
`As explained below, neither of these claims is “strong”—quite the opposite, both claims are subject to
`dismissal under well-settled law.
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`1.
`Aiding and Abetting a Tort
`38.
`The aiding and abetting a tort claim fails for at least three reasons: (1) the California Tort
`Claims Act precludes liability in these circumstances; (2) Plaintiffs fail to state an underlying claim against
`Clearview; and (3) Plaintiffs fail to allege any facts that could support an aiding and abetting claim.
`a.
`California Tort Claims Act
`39.
`As a threshold matter, the tort liability of public entities in California is governed by the
`California Tort Claims Act (“CTCA”). See Cal. Gov’t. Code, §§ 810 et seq. Here, all of the named
`defendants other than Clearview are indisputably public entities. See Cal. Gov’t Code § 900.4 (“‘Local
`public entity’ includes a county, city, district, public authority, public agency, and any other political
`subdivision or public corporation in the State”). The CTCA provides that a public entity is “not liable for
`an injury” at common law. Cal. Gov’t. Code § 815. As the legislative notes to § 815 explain, “public
`entities may be held liable only if a statute . . . is found declaring them to be liable” and “the practical effect
`of this section is to eliminate any common law governmental liability for damages arising out of torts.”
`Cal. Gov. Code § 815 legislative committee comments (2021). “Consequently, all government tort liability
`must be based on a statute.” Brooks v. City of Fremont, C07-06458 JSW, 2008 WL 1994889, at *8 (N.D.
`Cal. May 5, 2008) (citation omitted). Here, Plaintiffs fail to cite any statutory basis for their aiding and
`abetting a tort claim against the Municipal Defendants. As a result, this claim must be dismissed. See,
`e.g., Forbes v. Cty. Of San Bernardino, 101 Cal. App. 4th 48, 52-53 (Cal. Ct. App. 2002) (dismissing
`without leave to amend a tort claim against a public entity, where the complaint alleged no statutory basis
`for liability).
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`b.
`No Underlying Claim Against Clearview
`40. Moreover, the aiding and abetting claim against the Municipal Defendants is not viable
`because Plaintiffs fail to state any underlying tort claim against Clearview. See In re Mortg. Elec.
`Registration Sys., Inc., 754 F.3d 772, 786 (9th Cir. 2014) (applying California law) (“Aiding-and-abetting
`liability depends on the existence of an underlying tort.”); Goonewardene v. ADP, LLC, 5 Cal. App. 5th
`154, 187-89 (Cal. Ct. App. 2016); Valbuena v. Law Offices of Les Zieve, No. E067927, 2018 WL 4356796,
`at *7 (Cal. Ct. App. Sept. 13, 2018) (same).
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`Common Law Appropriation of Likeness
`41.
`The first cause of action against Clearview is common law appropriation of likeness.
`Plaintiffs allege that Clearview unlawfully “used” their likenesses “for the purposes of commercial profit”
`by “selling access” to their likenesses. Ex. 1, ¶¶ 79-80.
`42.
`But the tort of common law appropriation of likeness does not extend to any and all
`commercial activity—it protects only the “right to prevent others from misappropriating the economic
`value generated . . . through the merchandising of the ‘name, voice, signature, photograph, or likeness’ of
`the [holder].’” Timed Out, LLC v. Youabian, Inc., 229 Cal. App. 4th 1001, 1006 (2014) (emphasis added);
`see also Maloney v. T3Media, Inc., 853 F.3d 1004, 1010 (9th Cir. 2017) (holding that the “core” of the
`right of publicity is preventing “merchandising [of] a celebrity’s image without that person’s consent”
`(emphasis added)); see also Hilton v. Hallmark Cards, 599 F.3d 894, 905 n.7 (9th Cir. 2010) (noting that
`a greeting card bearing a celebrity’s likeness was a product rather than an advertisement, and was
`protected); Aldrin v. Topps Co., Inc., No. CV 10-09939 DDP (FMOX), 2011 WL 4500013, at *3 (C.D.
`Cal. Sept. 27, 2011) (holding that the right of publicity does not prohibit use of a likeness for sharing
`information).
`43.
`“The allegations about how [Clearview] shared the plaintiffs’ information with third parties
`is categorically different from the type of conduct made unlawful by this tort, such as using a plaintiff’s
`face or name to promote a product or service.” In re Facebook, Inc., Consumer Priv. User Profile Litig.,
`402 F. Supp. 3d 767, 803 (N.D. Cal. 2019). Nowhere does the Complaint allege that Clearview used
`Plaintiffs’ likenesses in advertising or merchandising. Plaintiffs state that their information is a part of a
`Clearview database that some clients pay to access—and according to Plaintiffs’ theory, Clearview
`gathered this information from publicly-available photographs on the Internet for further dissemination to
`the public, not for use in advertising or merchandising. Ex. 1, ¶¶ 2-5, 12-18, 29, 63-64, 87. Plaintiffs’
`claim for common law misappropriation of likeness is not viable, because that claim simply has nothing to
`do with Clearview’s alleged conduct or business model. As a result, this claim against Clearview cannot
`serve as the underlying claim for an aiding and abetting claim against the Municipal Defendants.
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