Hammerling v. Google LLC
| Decision Date | 18 July 2022 |
| Docket Number | 21-cv-09004-CRB |
| Parties | MARIE HAMMERLING, et al., Plaintiffs, v. GOOGLE LLC, Defendant. |
| Court | U.S. District Court — Northern District of California |
ORDER GRANTING MOTION TO DISMISS
Plaintiffs Marie Hammerling and Kay Jackson allege that for years Defendant Google LLC secretly used their Android smartphones to collect data about non-Google app installation metrics the amount of time spent using non-Google apps, and how often those apps were open. Plaintiffs allege that Google used this data determine Plaintiffs' personal information, such as their religious and political beliefs. In doing so, Google allegedly breached its contract with its customers and violated California's Unfair Competition Law, the California Constitution, and California fraud and privacy laws. Compl. (dkt. 1) ¶¶ 1, 10. Google moves to dismiss Plaintiffs' claims for failure to state a claim under Federal Rules of Civil Procedure 12(b)(6) and 9(b). Mot. (dkt. 33) at 2. The Court GRANTS the motion to dismiss all claims with leave to amend.
Hammerling and Jackson are Florida residents who bring this putative class action on behalf of themselves, and all others similarly situated. Compl. ¶¶ 15, 19, 86. Since 2014, Plaintiffs have owned several Android smartphones, all made by manufacturers other than Google itself. Id. ¶¶ 15, 19. Android OS is an operating system that powers about 75% of the world's smartphones, including Plaintiffs' smartphones. Id. ¶¶ 28, 31.
Defendant Google is a technology company that has owned the Android OS since 2005. Id. ¶¶ 23, 28.
Plaintiffs allege the following. Since 2012, Google has collected “sensitive personal data” from Android smartphones through a secret project titled, “Android Lockbox.” Id. ¶¶ 35, 38. The public first learned of Google's “Android Lockbox” project in 2020, when the news service, The Information, published an article detailing the project. Id. ¶¶ 44, 83. A congressional report released after The Information's article described Google's “Android Lockbox” as “a covert effort to track real-time data” on Android smartphone users' “usage and engagement” with non-Google apps. Id. ¶ 34. The report detailed that “usage and engagement” data (what Plaintiffs call “sensitive personal data”) includes “installation metrics” for non-Google apps, “the average number of days users were active on any particular app,” and a users' total time spent on a non-Google app.[1] Id. ¶¶ 34-35, 37-38, 121.
Plaintiffs allege that Google utilized “Android Lockbox” to collect Plaintiffs' personal data without their knowledge or consent. Id. ¶¶ 17, 21, 48. Plaintiffs use several non-Google apps on their smartphones, “including Facebook, Instagram, and TikTok.” Id. ¶¶ 16, 20. Google allegedly collected usage and engagement data from these non-Google apps and then used the data to compete with rivals like Facebook. Id. ¶¶ 39, 41. Plaintiffs also allege that from the data Google can learn intimate details about users, such as “their religious and political affiliations, their activity level, their sexual preferences and proclivities, and other habits and preferences.” Id. ¶ 69. For example, “Google can learn details of a user's sleep schedule, menstrual cycle, or exercise routine based on when and how often they interact with an alarm clock app, fertility tracker, or fitness app.”[2] Id. ¶ 7.
Plaintiffs allege Google does not seek consent to collect Android user data from non-Google apps. Id. ¶ 46. Further, it does not disclose that it collects this data or that it does so to compete with other companies. Id. ¶¶ 46-47. Rather, when Plaintiffs and class members set up their Android smartphones for the first time, Google states only that it collects user data “to offer a more personalized experience.” Id. ¶ 52. Google's Privacy Policy similarly does not disclose Google's data collection practices. Id. ¶ 55. Google's Privacy Policy “only states that it may collect information about ‘activity on third-party sites and apps that use our services,'” but it does not explain that it monitors the “frequency that non-Google apps are used or the duration of time a user spends on nonGoogle apps.” Id. ¶ 58. Plaintiffs allege that they “would not have purchased, or would have paid significantly less for,” their Android Smartphones had they known that Google would collect their personal data from non-Google apps. Id. ¶ 61.
Based on these allegations, Plaintiffs allege the following ten claims: (1) common law intrusion upon seclusion; (2) invasion of privacy under the California Constitution; (3) violation of California Civil Code section 1709; (4) violations of the fraud, unlawful, and unfair prongs of California Civil Code section 17200 (“Unfair Competition Law” or “UCL”), (5) violation of California Civil Code section 1750 (“California Consumers Legal Remedies Act” or “CLRA”); (6) breach of contract; (7) breach of implied contract; (8) unjust enrichment; (9) request for relief under the Declaratory Judgment Act; and (10) violation of California Penal Code section 631 (“California's Invasion of Privacy Act” or “CIPA”). Id. ¶¶ 102-201.
In their papers, both parties refer to a recent decision by Judge van Keulen that concerned issues nearly identical to those in this case. The McCoy v. Alphabet plaintiffs (represented by the same attorneys as here) sued Google for collecting their personal data from non-Google apps on Android smartphones. 2021 WL 405816, at *1 (N.D. Cal. Feb. 2, 2021). The McCoy plaintiffs alleged the same ten claims present here. Id. at *4. Judge van Keulen granted Google's motion to dismiss plaintiffs' common law intrusion upon seclusion, invasion of privacy under the California Constitution, CIPA, breach of implied contract, and unjust enrichment claims. Id. at *14. She also dismissed the plaintiffs' CLRA claim because plaintiffs did not file an affidavit, as the CLRA requires. Id. at *11. She declined, however, to dismiss the plaintiffs' breach of contract, Declaratory Judgment, and fraud claims (Section 1709 and UCL). Id. at *8-10, * 14. On November 9, 2021, Judge van Keulen compelled the plaintiffs' claims to arbitration after Google discovered that the named plaintiff was subject to a binding arbitration agreement because Google had manufactured his Android smartphone. McCoy v. Google, LLC, 2021 WL 6882419, at *3 (N.D. Cal. Nov. 9, 2021). Plaintiffs' counsel sought to add Hammerling and Jackson as named plaintiffs (because Google had not manufactured their Android phones), but Judge van Keulen denied that request, leading them to file this case. Id. at *4.
Where applicable, the Court refers to Judge van Keulen's reasoning in McCoy in this order. Judge van Keulen, however, did not consider (or the parties did not present to her) many of the arguments Plaintiffs assert in this case.
Under Federal Rule of Civil Procedure 12(b)(6), the Court may dismiss a complaint for failure to state a claim upon which relief may be granted. Dismissal may be based on either “the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” Godecke v. Kinetic Concepts, Inc., 937 F.3d 1201, 1208 (9th Cir. 2019) (cleaned up). A complaint must plead “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (cleaned up). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. When evaluating a motion to dismiss, the Court “must presume all factual allegations of the complaint to be true and draw all reasonable inferences in favor of the nonmoving party.” Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). “Courts must consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
Claims for fraud must meet the pleading standard of Federal Rule of Civil Procedure 9(b), which requires a party “alleging fraud or mistake [to] state with particularity the circumstances constituting fraud or mistake.” Rule 9(b) “requires . . . an account of the time, place, and specific content of the false representations as well as the identities of the parties to the misrepresentations.” Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir. 2007) (cleaned up). “This means that averments of fraud must be accompanied by the who, what, when, where, and how of the misconduct charged.” In re Google Assistant Priv. Litig., 546 F.Supp.3d 945, 955 (N.D. Cal. 2021) (internal quotations omitted).
If a court dismisses a complaint for failure to state a claim, it should “freely give leave” to amend “when justice so requires.” Fed.R.Civ.P. 15(a)(2). A court has discretion to deny leave to amend due to “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendment previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of amendment.” Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 532 (9th Cir. 2008).
This order first considers whether Google's Privacy Policy is incorporated by reference into the complaint. It then addresses Google's motion to dismiss in the following order: (1) fraud claims (Section 1709, UCL's fraud prong and CLRA); (2) privacy claims (common law...
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