Mayron v. Google LLC

• Decision Date: 11 September 2020
• Docket Number: H044592
• Citation: 54 Cal.App.5th 566,269 Cal.Rptr.3d 86
• Parties: Eric MAYRON, Plaintiff and Appellant, v. GOOGLE LLC, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

54 Cal.App.5th 566

269 Cal.Rptr.3d 86

Eric MAYRON, Plaintiff and Appellant,

v.GOOGLE LLC, Defendant and Respondent.

H044592

Court of Appeal, Sixth District, California.

Filed September 11, 2020

Julian Hammond, Hammon Law, P.C., Laura Luo Ho, Anne P. Bellows, Goldstein, Borgen, Dardarian & Ho, for Plaintiff/Appellant ERIC MAYRON.

David H. Kramer, Brian M. Willen, Wilson, Sonsini, Goodrich & Rosati, for Defendant/Respondent GOOGLE LLC.

Grover, J.

In this putative class action, plaintiff Eric Mayron sued Google LLC for violating the automatic renewal law ( Bus. & Prof. Code, § 17600, et seq. ) and for unfair competition ( Bus. & Prof. Code, § 17200, et seq. ). Plaintiff appeals after the trial court sustained Google's demurrer to the complaint without leave to amend. We conclude there is no private right of action for violation of the automatic renewal law. Further, since plaintiff has not alleged an injury caused by Google's conduct, he has no standing to sue under the unfair competition statute. We will therefore affirm the judgment.

I. BACKGROUND

California's automatic renewal law was enacted "to end the practice of ongoing charging of consumer credit or debit cards [ ] without the consumers' explicit consent for ongoing shipments of a product or ongoing deliveries of service." ( Bus. & Prof. Code, § 17600 (unspecified statutory references are to this code).) The law requires a consumer's affirmative consent to any subscription agreement automatically renewed for a new term when the initial term ends. (§ 17602, subd. (a)(2).) It further requires "clear and conspicuous" disclosure of the offer terms, and an "easy-to-use mechanism for cancellation." (§ 17602, subds. (a)(1), (b).)

Plaintiff sued Google on behalf of a putative class, alleging that Google's subscription data storage plan violates the automatic renewal law. As described in the complaint, "Google Drive" allows users (those registered for a Google account) to remotely store electronic data that can be accessed from any computer, smartphone, or similar device. There is no charge for 15 gigabytes of storage capacity. For a $1.99 monthly fee, users can upgrade to 100 gigabytes of storage. Plaintiff alleged the upgraded Google Drive plan violates the automatic renewal law because Google did not provide the required clear and conspicuous disclosures nor obtain his affirmative consent to commence a recurring monthly subscription agreement, and did not adequately explain how to cancel.

Plaintiff asserted one cause of action for violation of the automatic renewal law, and another for statutory unfair competition based on the alleged unlawful practice. Google demurred to the complaint. It argued there is no private right of action under the automatic renewal law and that plaintiff did not allege actual injury sufficient to confer standing for an unfair competition claim. The trial court ultimately sustained the demurrer without leave to amend.

II. DISCUSSION

Appellate review of a decision sustaining a demurrer is de novo. ( Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125, 271 Cal.Rptr. 146, 793 P.2d 479.) We assume the truth of the allegations in the complaint and determine whether a valid cause of action is stated under any legal theory. ( Doan v. State Farm General Ins. Co. (2011) 195 Cal.App.4th 1082, 1091, 125 Cal.Rptr.3d 793.)

A. THE AUTOMATIC RENEWAL LAW DOES NOT PROVIDE A PRIVATE RIGHT OF ACTION

A private party can sue for violation of a statute only where the statute in question allows it. ( Lu v. Hawaiian Gardens Casino, Inc. (2010) 50 Cal.4th 592, 596, 113 Cal.Rptr.3d 498, 236 P.3d 346 ( Lu ).) We first examine the statutory text to see if it contains " ‘clear, understandable, unmistakable terms,’ which strongly and directly" indicate a private right of action is allowed. ( Id. at p. 597, 113 Cal.Rptr.3d 498, 236 P.3d 346.) The statute may, for instance, refer to obtaining a remedy or enforcing its provisions "by way of an action." ( Ibid. ) Where the text does not contain an unmistakable directive, the legislative history may indicate whether the Legislature intended to create a private cause of action. ( Id. at p. 598, 113 Cal.Rptr.3d 498, 236 P.3d 346.)

Plaintiff asserts section 17604 of the automatic renewal law clearly shows intent to create a private right of action. Entitled "Violations; Civil remedies," that section provides: "violation of this article shall not be a crime. However, all available civil remedies that apply to a violation of this article may be employed." Plaintiff reads the reference to "all available civil remedies" to mean that a private party can sue for any remedies available under the civil law, such as damages or an injunction. Plaintiff's interpretation is not unreasonable. While a remedy is not the same thing as a cause of action, a statute that says all available remedies can be employed for a violation suggests a right of action exists, since one cannot obtain a remedy without a viable cause of action.

At the same time, we are mindful there must be a "clear, understandable, unmistakable" indication of intent to allow a private right of action. It is not enough that the statutory text suggests such a right. (See Lu, supra , 50 Cal.4th 592 at p. 597, 113 Cal.Rptr.3d 498, 236 P.3d 346.) A clear indication means the text cannot be reasonably susceptible of competing interpretations. The language here is susceptible of more than one meaning. As we have noted, plaintiff's interpretation is plausible. But so is the one urged by Google—that the phrase "all available civil remedies ... may be employed" does not mean what plaintiff says but rather the opposite: it specifically indicates an intent not to create a new cause of action but to require enforcement through existing means (such as through Business and Professions Code section 17200, et seq., which allows individuals harmed by unlawful business practices to seek restitution and injunctive relief). We find that the statute's somewhat imprecise phrasing—"all available civil remedies that apply to a violation of this article may be employed"—is not sufficiently clear to conclude in the affirmative that a private individual may sue for a violation.

Plaintiff argues general rules of statutory interpretation, such as the rule against surplusage, dictate that the reference to remedies should be given effect as creating a cause of action. But a more specific rule controls in this context: the rule that in order to create a private right of action the Legislature must clearly express that intent.

Section 17603 similarly contains no clear indication of intent to create a private right to sue. Section 17603 provides that "any goods, wares, merchandise, or products" sent to a consumer under a subscription agreement that violates the automatic renewal law "shall for all purposes be deemed an unconditional gift to the consumer, who may use or dispose of the same in any manner he or she sees fit." That provision relieves the consumer of any obligation to return what has already been received and ensures the consumer has no liability for the products. But it does not follow from that language (at least not with sufficient clarity) that a consumer may affirmatively bring an action to enforce the statute. That is in contrast to the statute considered in Goehring v. Chapman University (2004) 121 Cal.App.4th 353, 377, 17 Cal.Rptr.3d 39, cited by plaintiff. There the court found a private right of action in Business and Professions Code section 6061, subdivision (h), which requires certain disclosures by unaccredited law schools and mandates that any school in violation "shall make a full refund of all fees paid by students." As the Legislature "unquestionably intended to bestow students or former students with individual monetary claims, it must have intended to give them private rights of action to pursue such claims." ( Goehring v. Chapman University , at p. 378, 17 Cal.Rptr.3d 39.) Section 17603 is different because it provides only a passive right to retain any products received from a violator, rather than a right to pursue a refund of fees a claimant could show had been paid. We also note that Goehring was decided several years before Lu , and therefore did not apply the Supreme Court's guidance regarding the clarity with which the Legislature must express its intent to create a private right of action.

We draw further support for our conclusion that the statutory text does not show an intent to create a private cause of action from the fact that the Legislature has in many instances demonstrated its ability to clearly express such an intent. Numerous statutes contain clear, unmistakable language regarding private enforcement that is much more explicit than the language used here. (See Lu, supra , 50 Cal.4th 592, 597, 113 Cal.Rptr.3d 498, 236 P.3d 346, listing statutes with a private right of action including Health & Saf. Code, § 1285, subd. (c) ["Any person who is detained in a health facility solely for the nonpayment of a bill has a cause of action against the health facility for the detention"]; Lab. Code § 218 ["Nothing in this article shall limit the right of any wage claimant to sue directly or through an assignee for any wages or penalty due him under this article"]; Bus. & Prof. Code, § 17070 ["Any person ... may bring an action to enjoin and restrain any violation of this chapter and, in addition thereto, for the recovery of damages"]; Bus. & Prof. Code § 6175.4, subd. (a) ["A client who suffers any damage as the result of a violation of this article by any lawyer may bring an action against that person to recover or obtain one or more of the following remedies"]; Civ. Code, § 1748.7, subd. (d) ["Any person injured by a violation of this section may bring an action for the recovery of damages, equitable relief, and reasonable attorney's fees and costs"].) Had the Legislature wanted to create a private right of action for violation of the automatic...