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Estavillo v. Blizzard Entertainment, Inc.

United States District Court, N.D. California, San Jose Division

December 5, 2019

ERIK ESTAVILLO, Plaintiff,
v.
BLIZZARD ENTERTAINMENT, INC. Defendant.

          ORDER GRANTING DEFENDANT'S MOTION TO DISMISS ADA CLAIM; REMANDING § 1723 CLAIM TO STATE COURT Re: Dkt. No. 9

          Edward J. Davila United States District Judge.

         Plaintiff Erik Estavillo alleges that Defendant Blizzard Entertainment, Inc.[1] (“Blizzard”), a video game developer, violated Cal. Civ. Code § 1723 and the Americans with Disabilities Act (“ADA”). Compl. (Dkt. No. 1-1) ¶ 5. Plaintiff seeks injunctive and equitable relief, compensatory damages, and $100, 000 in punitive damages. Id. ¶ 6. Blizzard removed Plaintiff's action from the Superior Court of California, County of Santa Clara, pursuant to 28 U.S.C. § 1331. Dkt. No. 1. Blizzard now moves to dismiss Plaintiff's claims under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Mot. to Dismiss (Dkt. No. 9). For the reasons below, the court: (1) dismisses Plaintiff's ADA claim under Rule 12(b)(6) with prejudice and without leave to amend, (2) declines to exercise supplemental jurisdiction over Plaintiff's remaining state-law claim under Cal. Civ. Code § 1723, and (3) remands Plaintiff's § 1723 claim to the Superior Court of California, County of Santa Clara.

         I. BACKGROUND

         In August 2019, Mr. Estavillo, a pro se Plaintiff, filed this action in the Superior Court of California, County of Santa Clara. Dkt. No. 1-1. Plaintiff suffers from Depression, Obsessive Compulsive Disorder, Panic Disorder, and Crohn's Disease. Compl. ¶ 4. These conditions make it challenging for him to socialize outside of his apartment. Id. Plaintiff “heavily relies on video games for communication with other players and other socialization needs that he can only meet via the video gaming medium.” Id. Playing video games also helps “occupy his time and distract him from said disabilities.” Id. Plaintiff played the video game Overwatch until Blizzard, the game developer, banned Plaintiff from the game for “abusive chat.” Id. Plaintiff contests Blizzard's justification for banning him. Id. Plaintiff claims, after the ban, he could not obtain a return or refund for the approximately $300 he had spent at Blizzard's “digital storefront” for “loot boxes” and “multiple copies of the game itself each time he has been banned.” Id.

         Plaintiff brings two causes of action. Id. ¶ 5. First, Plaintiff claims Blizzard violates Cal. Civ. Code § 1723 “by not explicitly stating that no returns or refunds are available on the front of their digital store for video gamers.” Id. Second, Plaintiff claims Blizzard's failure to “explicitly disclose[]” information about returns and refunds on its digital storefront and in its End-User License Agreement (“EULA”) violates the ADA. Id. Plaintiff contends that persons with mental disabilities and minors need information about returns and refunds “explicitly explained to them.” Id. Plaintiff seeks injunctive and equitable relief, compensatory damages, and $100, 000 in punitive damages. Id. ¶ 6.

         On September 3, 2019, Blizzard removed this action from the Superior Court of California, County of Santa Clara, pursuant to 28 U.S.C. § 1331. Dkt. No. 1. Blizzard claims removal is proper because Plaintiff's ADA claim poses a federal question. Id. at 1. Also, Blizzard argues that this court has supplemental jurisdiction over Plaintiff's state-law claim. Id. at 2. Soon after removal, Blizzard filed its Motion to Dismiss and a Request for Judicial Notice (“RJN”). Dkt. Nos. 9-10. Plaintiff then filed his Opposition, Blizzard filed its Reply, and Plaintiff filed a supplemental brief. Dkt. Nos. 14, 16-17. The court has considered the parties' papers and found that, pursuant to Local Rule 7-1(b), the motion is suitable for decision without oral argument.

         II. LEGAL STANDARDS

         Federal Rule of Civil Procedure 12(b)(6) provides that a party may seek dismissal of a suit for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). A court “must accept as true all factual allegations in the complaint and draw all reasonable inferences in favor of the nonmoving party.” Retail Prop. Tr. v. United Bhd. of Carpenters & Joiners of Am., 768 F.3d 938, 945 (9th Cir. 2014) (citation omitted). A court may dismiss a complaint on a Rule 12(b)(6) motion “only where there is no cognizable legal theory or an absence of sufficient facts alleged to support a cognizable legal theory.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001) (citing Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988), second am. opinion filed May 11, 1990)). Defeating a motion to dismiss requires that the complaint “contain[s] 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) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)) (quotations omitted).

         III. DISCUSSION

         A. Judicial Notice

         Blizzard requests that the court take judicial notice of twenty-two (22) exhibits. RJN (Dkt. No. 10). The exhibits include: (i) an excerpt from Plaintiff's autobiography (Ex. 1), (ii) complaints, orders, and voluntary requests for dismissal in prior litigation involving Plaintiff (Exs. 2-16), (iii) “Blizzard's webpage providing information about Overwatch from Blizzard's digital store” (Ex. 17), (iv) information concerning Blizzard's EULA (Exs. 18-20), and (v) information regarding Blizzard's Terms of Sale (Exs. 21-22). Id.

         The court GRANTS IN PART and DENIES IN PART Defendant's RJN. The court does not take judicial notice of Exhibits 1-13 and 18-22. The court does not find these materials necessary to consider for the court's analysis. However, the court takes judicial notice of Exs. 14- 17. Exhibit 14 is the amended complaint that Plaintiff filed in March 2019 in the Northern District of California in the matter of Erik Estavillo v. Behaviour Interactive/Starbreeze Studios (Case No. 19-cv-01025). RJN at 2; Ex. 14. There, Plaintiff brought nearly identical claims against other video game developers under Cal. Civ. Code § 1723 and the ADA. See RJN, Ex. 14. Exhibit 15 is the Hon. Magistrate Judge Van Keulen's report and recommendation to dismiss Plaintiff's amended complaint in that action. RJN, Ex. 15. Exhibit 16 is the Hon. Judge Orrick's order adopting Judge Van Keulen's report and recommendation to dismiss the case. RJN, Ex. 16. These facts are “not subject to reasonable dispute” because they “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” See Fed. R. Evid. 201(b).

         The court also takes judicial notice of Exhibit 17, screenshots from Blizzard's website that offer general information about Overwatch.[2] See RJN, Ex. 17. Plaintiff refers to Blizzard's website, the “digital storefront, ” throughout his complaint. In reviewing a Rule 12(b)(6) motion, the court may “consider[ ]” “[d]ocuments whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading.” Tunac v. United States, 897 F.3d 1197, 1207 n.8 (9th Cir. 2018) (citing Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994), overruled on other grounds by Galbraith v. Cty. of Santa Clara, 307 F.3d 1119 (9th Cir. 2002)) (quotations omitted).

         B. Plaintiff Does Not State a ...


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