United States District Court, N.D. California
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTION TO DISMISS RE: DKT. NO. 44
NATHANAEL M. COUSINS UNITED STATES MAGISTRATE JUDGE
the Court is defendants Bumble Trading, Inc. and Bumble
Holding Ltd.'s motion to dismiss plaintiffs Nick King
Jr., Deena Fischer, and Elena Weinberger's claims under
California's Dating Service Law and related consumer
protection statutes. The central question presented is
whether the choice of law provision in Bumble's terms of
service applies to Plaintiffs' claims. See Dkt.
No. 44. Because Plaintiffs allege violations of the Dating
Service Law and the Automatic Renewal Law, the Court must
consider whether those statutes represent fundamental public
policies of California. The Court concludes that the Dating
Service Law does not, but the Automatic Renewal Law does.
Accordingly, the Court DISMISSES without leave to amend
Plaintiffs' claims relying upon the Dating Service Law.
Plaintiffs' claims relating to the Automatic Renewal Law
Allegations in the Complaint
bring a putative class action arising out of Bumble's
alleged business practices. See Dkt. No. 43
(“SAC”). Bumble owns and operates mobile software
applications that offer dating services (the “Bumble
App”). Id. ¶ 1. Bumble also offers a
premium, paid service through the Bumble App called
“Bumble Boost.” Id. ¶ 23. Bumble
Boost offers weekly and monthly subscriptions allowing users
to “view which other users have indicated interest, to
extend expiring connections, and to revive expired
ones.” See Dkt. No. 44 at 10.
downloaded and installed the Bumble App and purchased Bumble
Boost. SAC ¶¶ 56, 75, 85. Fischer and Weinberger
requested refunds following their purchases-Fischer because
of technical issues with her account and Weinberger because
she no longer wanted the Bumble App-but both were denied.
Id. ¶¶ 78-79, 87-88. King was similarly
denied a refund after he informed Bumble that he had not
authorized five auto-renewing weekly payments for Bumble
Boost. Id. ¶¶ 64-65.
allege that Bumble does not notify consumers of their right
to cancel their dating service contracts and instead
maintains that all purchases are non-refundable. Id.
¶¶ 31, 33.
further alleges that Bumble failed to disclose the automatic
renewal terms of his Bumble Boost subscription, gain his
affirmative consent to automatic renewal, and provide a
statutorily-required acknowledgement. SAC ¶¶ 62,
110-13. He claims that Bumble's acknowledgement email
failed to provide him with the automatic renewal or
continuous service offer terms and cancellation policy, nor
did it provide information regarding how to cancel.
Id. ¶ 62; see also Id. Ex. B. King
states that after the one-week subscription expired, he no
longer used, nor did he want, Bumble Boost, but Bumble
automatically renewed the subscription and continued to
charge his debit card $8.99 for five weeks. Id.
¶ 63. King maintains that Bumble denied his refund
request for these allegedly unauthorized charges.
Id. ¶ 65.
using the Bumble App, Plaintiffs must agree to Bumble's
Terms of Service (“Terms”). See Id.
¶ 3. Those Terms include a choice of law provision
selecting New York law:
Your access to the App, Our Content, and any Member Content,
as well as these Terms are governed and interpreted by the
laws of the State of New York, other than such laws, rules,
regulations and case law that would result in the application
of the laws of a jurisdiction other than the State of New
Dkt. No. 43-1 § 12 (“Terms”).
Terms also require Plaintiffs to agree to certain limits on
express or implied warranties:
SHOULD APPLICABLE LAW NOT PERMIT THE FOREGOING EXCLUSION OF
EXPRESS OR IMPLIED WARRANTIES, THEN WE GRANT THE MINIMUM
EXPRESS OR IMPLIED WARRANTY REQUIRED BY APPLICABLE LAW.
Id. § 7. Bumble also requires its users to
“comply with all applicable laws, including without
limitation, privacy laws, intellectual property laws,
anti-spam laws, equal opportunity laws and regulatory
requirements[.]” Id. § 3.
November 13, 2018, Plaintiffs filed their complaint, alleging
claims under: (1) California's Dating Service Law, Cal.
Civ. Code §§ 1694 et seq.; (2) Consumer
Legal Remedies Act (“CLRA”), Cal. Civ. Code
§§ 1750 et seq., for violation of the
Automatic Renewal Law (“Renewal Law”), Cal. Bus.
& Prof. Code § 17602; (3) CLRA for violation of the
Dating Service Law; (4) Unfair Competition Act
(“UCL”), Cal. Bus. & Prof. Code §§
17200 et seq.; (5) declaratory judgment; and (6)
money had and received. See Dkt. No. 1 ¶¶
later filed a second amended complaint alleging the same
claims. See Dkt. No. 43. Bumble now moves to
dismiss. See Dkt. No. 44. The motion is fully
briefed and the Court held a hearing on June 5, 2019.
See Dkt. Nos. 46, 49, 51. All parties have consented
to the jurisdiction of a magistrate judge. See Dkt.
Nos. 11, 21.
motion to dismiss for failure to state a claim under Rule
12(b)(6) tests the legal sufficiency of a complaint.
Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001).
On a motion to dismiss, all allegations of material fact are
taken as true and construed in the light most favorable to
the non-movant. Cahill v. Liberty Mut. Ins. Co., 80
F.3d 336, 337-38 (9th Cir. 1996). The Court, however, need
not accept as true “allegations that are merely
conclusory, unwarranted deductions of fact, or unreasonable
inferences.” In re Gilead Scis. Secs. Litig.,
536 F.3d 1049, 1055 (9th Cir. 2008). Although a complaint
need not allege detailed factual allegations, it must contain
sufficient factual matter, accepted as true, to “state
a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). A claim is facially plausible when it “allows
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
seeks to enforce the choice of law provision in its Terms and
moves to dismiss Plaintiffs' California law claims.
Plaintiffs argue that the choice of law provision is
unenforceable. First, they argue, the choice of law provision
is ambiguous. Second, Plaintiffs contend that their claims
fall outside the scope of the choice of law provision.
Finally, Plaintiffs argue that the choice of law provision is
unenforceable under California's choice-of-law framework.
The Court addresses each argument in turn before deciding
whether Plaintiffs have stated a claim.
Choice of Law
courts sitting in diversity apply the laws of the forum state
when analyzing choice of law provisions. First
Intercontinental Bank v. Ahn, 798 F.3d 1149, 1153 (9th
Cir. 2015). Plaintiffs brought suit in the Northern District
of California, so California law regarding choice of law
has a strong public policy favoring enforcement of choice of
law provisions. Nedlloyd Lines B.V. v. Super. Ct., 3
Cal.4th 459, 465 (1992). California courts analyze choice of
law provisions using the framework set out in Restatement