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In re Google Location History Litigation

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

December 19, 2019

IN RE GOOGLE LOCATION HISTORY LITIGATION

          ORDER GRANTING DEFENDANT'S MOTION TO DISMISS RE: DKT. NO. 87

          EDWARD J. DAVILA, UNITED STATES DISTRICT JUDGE

         Plaintiffs 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.

         I. BACKGROUND

         A. Factual Background

         Plaintiffs 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.

         Plaintiffs 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.

         Plaintiffs 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.

         B. Procedural History

         On May 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.

         On July 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.

         II. JUDICIAL NOTICE

         Defendant 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.

         A. Legal Standard

         Generally, 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.

         Rule 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).

         B. Discussion

         1. Defendant's First Request for Judicial Notice

         Plaintiffs 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.

         Plaintiffs 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.

         2. Defendant's Second Request for Judicial Notice

         Exhibits 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 GRANTED.

         III. ...


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