United States District Court, N.D. California, San Jose Division
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS RE:
DKT. NO. 87
J. DAVILA, UNITED STATES DISTRICT JUDGE
Napoleon Patacsil, Richard Dixon (and his minor child L.D.),
Najat Oshana, Mark Carson, Nurudaaym Mahon, and Aichi Ali
bring this putative class action alleging that Defendant
Google LLC violated California law by tracking and storing
geolocation data via its various applications, i.e.
Google Maps, Chrome, etc. Having considered the Parties'
briefs and having had the benefit of oral argument on
November 21, 2019, the Court GRANTS
Defendant's Motion to Dismiss.
bring this putative class action and allege that Defendant
violated California statutory, constitutional, and common law
by secretly tracking and storing the geolocation and other
personal data of its users. Consolidated Class Action
Complaint (“Compl.”) ¶ 1, Dkt. 80.
Allegedly, Defendant “misled people who use[d] its
products and services” by “telling them that if
they activate or deactivate certain settings it [would]
prevent Google from tracking their movements and storing a
record of their geolocations.” Id.
discuss two privacy settings: Location History and Web &
App Activity. See id. ¶¶ 5, 8-9, 11,
13-14, 16, 18, 20-21, 23-24, 26-27, 29, 38-39, 40-50, 61-70,
72-75, 77-80, 86- 87, 106, 109-10. Location History is a
setting that “saves where you go with every mobile
device.” Id., Ex. 26 at ECF 352.
“Location History is turned off by default . . . and
can only be turned on if [the user] opt[s] in.”
Id. The Web & App Activity setting is
different-it is “on” by default and saves certain
information about a user's “activity on Google
sites and apps to give you faster searches, better
recommendations, and more personalized experiences in Maps,
Search, and other Google services.” Id., Ex.
27 at ECF 356. Notably, Web & App Activity is triggered
only when one uses Google-controlled features, like the
Google Maps app or conducts searches using Google's
web-search service. Id. ¶ 47. This is narrower
than the general geolocation tracking which occurs if
Location History is turned “on.” Plaintiffs
contend that while the two settings are distinct, they
reasonably thought that the “Location History”
setting allowed users to prevent Google from tracking and
storing geolocation information. Id. ¶¶
8-9, 13-14, 18, 21, 24, 27, 69. They allege that Defendant
erroneously told users they could “turn off Location
History at any time” and that, with Location History
off, “the places you go are no longer stored.”
Id. ¶¶ 5, 40. In reality, turning
“off” Location History only prevented general
geolocation tracking. As reported by the Associated Press and
corroborated by academic cybersecurity researchers at
Princeton University, even when “Location
History” was “off, ” Defendant captured and
kept a record of Plaintiffs' location information.
Id. ¶ 4.
allege Defendant violated the California Invasion of Privacy
Act (“CIPA”), the right to privacy under the
California Constitution, and the common-law tort of Intrusion
Upon Seclusion by the unauthorized surveillance and storage
of geolocation data. ¶¶ 118-42. Plaintiffs declined
to “recite” the “precise locations”
where they took their mobile devices with the Location
History setting “off, ” but allege that if one
knew those locations, one could learn things about Plaintiffs
like their eating, shopping, and exercise habits, medical or
psychological care, involvement in the activities of their
children (if any), social life, personal residence and/or
friends' residences, recurring appointments, religious
services, and political affiliations. Id.
¶¶ 11, 16, 20, 23, 26, 29.
28, 2019, Defendant filed a Motion to Dismiss Plaintiffs'
Consolidated Complaint. Motion to Dismiss Plaintiffs'
Consolidated Complaint (“Mot.”), Dkt. 87.
Defendant also filed a Request for Judicial Notice with this
motion. Request for Judicial Notice (“RJN”), Dkt.
88. On July 2, 2019, Plaintiffs filed an opposition to
Defendant's motion to dismiss. Opposition/Response re
Motion to Dismiss (“Opp.”), Dkt. 93. Plaintiffs
also filed an opposition to Defendants' request for
Judicial Notice as to Exhibit 1. Opposition to Request for
Judicial Notice (“Opp. RJN”), Dkt. 94. Defendant
submitted a reply to this opposition on July 30, 2019. Reply
in Support of Request for Judicial Notice (“Reply
RJN”), Dkt. 100.
30, 2019, Defendant filed its Reply. Reply re Motion to
Dismiss (“Reply”), Dkt. 98. Defendant submitted
another request for judicial notice with its reply. Request
for Judicial Notice re Reply (“RJN 2”), Dkt. 99.
Plaintiffs submitted an opposition to this request on August
13, 2019. Plaintiffs' Opposition to Google's
Supplemental Request for Judicial Notice (“Opp. RJN
2”), Dkt. 103.
asks this Court to take judicial notice of Exhibits 1, 2,
3A-3D, 4, 5, and 6 attached to the Declaration of Christina
Lee (the “Lee Declaration”). RJN at 1. Defendant
also asks this Court to take judicial notice of Exhibits 1-3
attached to the Declaration of Bright Y. Kellogg (the
“Kellogg Declaration”). RJN 2 at 1.
district courts may not consider material outside the
pleadings when assessing the sufficiency of a complaint under
Rule 12(b)(6) of the Federal Rules of Civil Procedure.
Lee v. City of L.A., 250 F.3d 668, 688 (9th Cir.
2001). When matters outside the pleadings are considered, the
12(b)(6) motion converts into a motion for summary judgment.
Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988,
998 (9th Cir. 2018); see also Fed. R. Civ. P. 12(d).
This rule does not apply to the incorporation by reference
doctrine and judicial notice under Federal Rule of Evidence
201. Khoja, 899 F.3d at 998.
201 permits a court to take judicial notice of an
adjudicative fact “not subject to reasonable dispute,
” that is “generally known” or “can
be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned.” Fed.R.Evid.
201(b). Specifically, a court may take judicial notice: (1)
of matters of public record, Khoja, 899 F.3d at 999,
(2) legislative history, Anderson v. Holder, 673
F.3d 1089, 1094 n.1 (9th Cir. 2012), and (3) publicly
accessible websites whose accuracy and authenticity is not
subject to dispute, Daniels-Hall v. Nat'l Educ.
Ass'n, 629 F.3d 992, 998-99 (9th Cir. 2010). A court
may consider facts contained in the noticed materials.
Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994).
Defendant's First Request for Judicial Notice
only take issue with Exhibit 1 of the Lee Declaration.
See Opp. RJN. Exhibits 2, 3A-3D, 4, 5, and 6 of the
Lee Declaration may be judicially noticed-they are either
publicly available websites whose accuracy is not subject to
reasonable dispute or legislative history. See Daniels
Hall, 629 F.3d at 998-99; Anderson, 673 F.3d at
1094 n.1. Accordingly, the Court GRANTS
Defendant's requests for judicial notice for Exhibits 2,
3A-3D, 4, 5, and 6 of the Lee Declaration.
argue that this Court should not take judicial notice of
Exhibit 1 because, although it is a publicly available
website, the statements contained therein are unreliable,
untrustworthy, and self-serving. Opp. RJN at 2-3. But, when a
court takes judicial notice, it is not noticing the truth of
the statements contained in an exhibit. Rather, the Court
“takes judicial notice that [an exhibit] was in the
public realm . . . [and] not for the truth of [its]
contents.” Diaz v. Intuit, Inc., 2018 WL
2215790, at *3 (N.D. Cal. May 15, 2018) (citing Brodsky
v. Yahoo! Inc., 630 F.Supp.2d 1104, 1111 (N.D. Cal.
2009). Here, Defendant is not asking the Court to judicially
notice the truth of the statements contained in Exhibit 1.
Rather, Defendant requests for this Court to notice that: (1)
Exhibit 1 was in the public realm as of May 25, 2019 and (2)
that Google publicly disclosed, as of May 25, 2019, to users
that Location History is an “opt-in only”
feature. Reply RJN. Plaintiffs do not dispute the second
proposition. See Compl., Ex. 26 at ECF 352.
Accordingly, the Court GRANTS
Defendant's request for judicial notice of Exhibit 1 of
the Lee Declaration.
Defendant's Second Request for Judicial Notice
1-3 to the Kellogg Declaration are printouts of websites.
See Caldwell v. Caldwell, 2006 WL 618511, at *3-4
(N.D. Cal. Mar. 13, 2006) (noting that judicial notice of
websites and their contents is typically proper if the
requesting party provides the court with a copy of the
specific web page). Plaintiffs spend most of the brief
arguing that judicial notice is improper because the facts
presented actually bolster the arguments made in their
Complaint. But this is not the inquiry. Plaintiffs next argue
that judicial notice is improper because the requests attempt
to impermissibly introduce new facts on a reply. Opp. RJN 2
at 2. The information sought to be noticed, however, has to
do with disclosures regarding Web & App Activity, which
Plaintiffs have already discussed in their Complaint and
oppositions. See, e.g., id. at 3. Thus,
Defendants are not introducing, for the first time, new facts
or different legal arguments via the three requested
exhibits. See State of Nev. v. Watkins, 914 F.2d
1545, 1560 (9th Cir. 1990) (“[Parties] cannot raise a
new issue for the first time in their reply
briefs.” (emphasis added)). Accordingly, because the
three requested exhibits are publicly available websites,
judicial notice is proper, and Defendant's request is