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Young v. Greystar Real Estate Partners, LLC

United States District Court, S.D. California

August 31, 2019

JONATHON YOUNG, Individually and On Behalf of All Others Similarly Situated, Plaintiff,



         Plaintiff Jonathon Young ("Young" or "Plaintiff) on behalf of himself and all others similarly situated, brings the instant action against Defendant Greystar Real Estate Partners, LLC ("Greystar" or "Defendant"). (See Doc. No. 14.) The gravamen of Plaintiffs First Amended Complaint ("FAC") is Defendant harvested a personal photograph of Plaintiff from Plaintiffs personal Instagram page and subsequently reposted it on Defendant's Instagram and Facebook pages without the Plaintiffs consent. See Id. ¶¶ 15 - 46. Defendant moves under Federal Rule of Civil Procedure 12(b)(6) to dismiss counts one and three of Plaintiff Jonathon Young's ("Young" or "Plaintiff) First Amended Class Action Complaint ("FAC"), or in the alternative, under 12(f), to strike portions of the FAC. (Doc. Nos. 16, 17.) For the following reasons, Defendant's Motion to Dismiss Counts One and Three is GRANTED and the Motion to Strike is DENIED.

         I. BACKGROUND

         On June 13, 2018, Plaintiff posted a personal photograph on his personal Instagram page which he claims depicted his entire frame. (See Doc. No. 14 ¶¶ 15, 16.) The Defendant allegedly harvested that photograph from Plaintiffs Instagram page and subsequently posted it with a personalized caption to an apartment complex's Instagram and Facebook webpages on June 26, 2018, to "showcase Defendant's ideal geographical location as well as Defendant's dog-friendly atmosphere."[1] Id. ¶ 27. Plaintiff contends that Defendant does business under the name "Dylan Point Loma Apartments" and currently maintains Instagram and Facebook pages under the names "dylanpointlomaapartments" and "Dylan Point Loma Apartments - Point Loma, CA." Id. ¶¶ 20, 26. Plaintiff further contends the Defendant harvested and reposted his photograph without his knowledge or consent causing him severe emotional harm, mental anguish, and a significant privacy violation.[2] Id. ¶¶ 29, 37.


         The Court generally may not look beyond the four corners of a complaint in ruling on a Rule 12(b)(6) motion, with the exception of documents incorporated into the complaint by reference, and any relevant matters subject to judicial notice. See Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007); Lee v. City of L.A, 250 F.3d 668, 688-89 (9th Cir. 2001). Under the doctrine of incorporation by reference, the Court may consider on a Rule 12(b)(6) motion not only documents attached to the complaint, but also i documents whose contents are alleged therein, provided the complaint "necessarily relies" on the documents or contents thereof, the document's authenticity is uncontested, and the document's relevance is uncontested. Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010); accord Lee, 250 F.3d at 688-89. The purpose of this rule is to "prevent plaintiffs from surviving a Rule 12(b)(6) motion by deliberately omitting documents upon which their claims are based." Swartz, 476 F.3d at 763 (alterations and internal quotation marks omitted).

         The Court also may take judicial notice of matters that are either (1) generally known within the trial court's territorial jurisdiction or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Fed.R.Evid. 201(b). Proper subjects of judicial notice when ruling on a motion to dismiss j include legislative history reports, see Anderson v. Holder, 673 F.3d 1089, 1094 n. 1 (9th Cir. 2012); court documents already in the public record and documents filed in other courts, see Holder v. Holder, 305 F.3d 854, 866 (9th Cir. 2002); and publicly accessible websites, see Daniels-Hall v. Nat 7 Educ. Ass % 629 F.3d 992, 998-99 (9th Cir. 2010).

         In support of their Motion to Dismiss, Defendant requests judicial notice of 'Tnstagram and Facebook posts attached as Exhibits 'A' and 'B' to the Declaration of Lily Zimmel in Support of Defendant's Motion to Dismiss Plaintiffs First Amended Complaint." (Doc. No. 16-2 at 2.) Plaintiff did not file any opposition to the Defendant's request for judicial notice. Moreover, "the complaint specifically describes the posts (and photograph) by reference to a social media caption ('Welcome to doggy heaven ...' and hashtags (#LiveDylan ...'". Id. Accordingly, the Court GRANTS Defendant's request for judicial notice of Exhibits "A" and "B" to the Declaration of Lily Zimmel.


         A. Motion to Dismiss

         Defendant moves to dismiss count "one"[3] and "three"[4] of the FAC under Federal Rule of Civil Procedure 12(b)(6) because (1) the Plaintiff is not readily identifiable in the photograph for purposes of the statutory right of publicity claim; (2) the Plaintiff failed to plausibly allege statutory standing necessary to pursue a UCL claim; (3) the Plaintiff failed to state any claim for injunctive relief or restitution, the only two remedies available under the UCL; and (4) the Plaintiff does not and cannot allege that he actually relied on any purported misrepresentation under the UCL's fraudulent prong. (Doc. No. 16-1 at 1-2.)

         Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a complaint to include "a short and plain statement of the claim showing that the pleader is entitled to relief." A complaint that fails to meet this standard may be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). The Supreme Court has held that Rule 8(a) requires a plaintiff to plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (internal quotation marks omitted). For purposes of ruling on a Rule 12(b)(6) motion, the Court "accept[s] factual allegations in the complaint as true and construe[s] the pleadings in the light most favorable to the nonmoving party." Manzarek v. St. Paul Fire & Marine Ins. Co., 519 i F.3d 1025, 1031 (9th Cir. 2008).

         The Court, however, need not accept as true allegations contradicted by judicially noticeable facts, see Shwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2000), and it "may look beyond the plaintiffs complaint to matters of public record" without converting the Rule 12(b)(6) motion into a motion for summary judgment, Shaw v. Hahn, 56 F.3d 1128, 1129 n. 1 (9th Cir. 1995). Nor must the Court "assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Foyer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (per curiam) (internal quotation marks omitted). Mere "conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss." Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004).

         The Court must then determine whether, based on the allegations that remain and all reasonable inferences that may be drawn therefrom, the Complaint alleges a plausible claim for relief. See Iqbal, 556 U.S. at 679; U.S. ex rel. Cafasso v. Gen. Dynamics C4 Sys., Inc.,637 F.3d 1047, 1054 (9th Cir. 2011). "Determining whether a complaint states a plausible claim for relief is 'a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.'" Ebner v. Fresh, Inc., No. 13-56644, 2016 WL 5389307, at *2 (9th Cir. Sept. 27, 2016) (as amended) (quoting Iqbal, 556 U.S. at 679). Where the facts as pleaded in the Complaint indicate that there are two alternative explanations, only one of which would result in liability, "plaintiffs cannot offer allegations that are merely consistent with their favored explanation but are also consistent with the alternative explanation as true, in ...

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