Minute OrderCal. Super. - 6th Dist.September 11, 2020SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Wozniak, et al. v. Youtube, LLC, et al. Hearing Start Time: 1:30 PM 20CV370338 Hearing Type: Hearing: Other Date of Hearing: 01/20/2022 Comments: Heard By: Kulkarni, Sunil R Location: Department 1 Courtroom Reporter: - No Record Transcribed Courtroom Clerk: Maggie Castellon Court Interpreter: Court Investigator: Parties Present: Future Hearings: Exhibits: - No Appearance. Tentative Ruling is not contested. THE COURT ADOPTS THE TENTATIVE RULING; see below: This action arises from a scam that uses images and videos of plaintiff Steve Wozniak and other famous tech entrepreneurs to fraudulently induce individuals to transfer their cryptocurrency to the scammers. Mr. Wozniak and the other plaintiffs (collectively Plaintiffs ), who are victims of the scam, allege that defendants YouTube, LLC and Google, LLC (collectively Defendants ) contribute to this scheme in various ways through their operation of the YouTube video-sharing platform. In a June 2021 order ( June Order ), the Court sustained Defendants demurrer to the First Amended Complaint ( FAC ) on the basis that its claims were all barred by Section 230 ofthe Communications Decency Act (the CDA ). But the Court granted Plaintiffs leave to amend their complaint. Plaintiffs then moved to lift the initial discovery stay in this case, urging they needed evidence within Defendants control to plead around CDA immunity. In an August 2021 order ( August Order ), the Court denied this motion in its discretion, holding that the public policy supporting CDA immunity generally overrides a plaintiff s right to discovery where the operative complaint fails to allege any claim avoiding the application of Section 230. Plaintiffs filed the operative Second Amended Complaint ( SAC) without the benefit of any discovery. Now before the Court are Defendants demurrer to the SAC and Plaintiffs renewed motion to lift the discovery stay. As discussed below, the Court SUSTAINS the demurrer in its entirety, this time without leave to amend, and DENIES the motion to lift the discovery stay. |. BACKGROUND As alleged by Plaintiffs, Mr. Wozniak is a Silicon Valley icon who co-founded Apple Computer in the 19705 and has since engaged in many entrepreneurial and philanthropic ventures. (SAC, 18.) He is a widely known, recognized, and beloved public figure. (|bid.) Along with Mr. Wozniak, seventeen individual victims of the scam giving rise to this action, who reside across the country and around the world, are named as Plaintiffs. (See id., 19 35.) Printed: 1/20/2022 01/20/2022 Hearing: Other - 20CV370338 Page 1 of 11 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER YouTube is a video-sharing platform that generates billions of dollars in annual revenue, and a whoIIy-owned subsidiary of Google. (SAC, 36, 55.) YouTube s primary source of revenue is from selling ads to third parties, and both YouTube and Google profit from the personal data of users, which allows them to sell highly targeted ads. (|d., 54.) A. The Bitcoin Giveaway Scam Plaintiffs allege that, for years, YouTube has been hosting, promoting, and directly profiting from scam videos and paid promotions that use images and videos of Mr. Wozniak and other famous tech celebrities to defraud YouTube users out of millions of dollars. (SAC, 2.) The scammers use these images and videos which are broadcast primarily on hijacked YouTube channels to convince YouTube users that celebrities are hosting live BTC or BITCOIN GIVEAWAY events and that, for a limited time, anyone who sends their bitcoin to a specified account will receive twice as much back. (|bid.) But when users transfer their cryptocurrency, the scam is complete, as the transaction is irreversible. (|bid.) This swindle has existed in cyberspace since at least October 2018, when Coin Rivet (a cryptocurrency- focused news site) reported that Twitter had done well to eliminate it from its platform, and that the scam had now made its way to YouTube. (SAC, 74.) Media continued to report that this scam was appearing on YouTube, and that YouTube s algorithm was actively promoting it. (|d., 75 79.) A version of the scam that misappropriates Mr. Wozniak s name, image, and likeness has repeatedly appeared since at least May 8, 2020. (|d., 80.) Mr. Wozniak and his wife have made numerous requests that YouTube intervene and remove the videos, but the problem persists, and videos promoting this swindle continue to appear on YouTube. (|d., 81 83.) The other Plaintiffs have also repeatedly informed Defendants of the scam and demanded that YouTube take action. (|d., 84.) B. Defendants Alleged Contributions to the Scam Plaintiffs allege that they have been harmed by YOUTUBE s deliberate and inexplicable failure to address the promotion of a pervasive fraud occurring on its platform. (SAC, 50.) For months on end, the BITCOIN GIVEAWAY scam has been replicated on YOUTUBE many times over in substantially the same form. (|d., 52.) These swindle videos and promotions are substantially similar in title and appearance, reuse many of the same words and phrases, reuse the same celebrities (including WOZNIAK), and reuse the same past video footage of those celebrities. (|bid.) YOUTUBE s egregious refusal to protect its users by taking timely action and its active participation in promoting and profiting from the BITCOIN GIVEAWAY scam has materially contributed to the scam and caused Plaintiffs harm. (|d., 54.) According to Plaintiffs, Defendants have knowingly allowed the BITCOIN GIVEAWAY scam to flourish on their platforms, including through lax security practices. (SAC, 59.) Google promotes its products and services, which include YouTube, as employing one of the most advanced security infrastructures in the world, and Defendants assure the public that YouTube doesn t allow spam, scams, or other deceptive practices that take advantage of the YouTube community. (|bid.) But despite these assurances, YOUTUBE s lax security practices make it unreasonably easy for criminals, including those behind the BITCOIN GIVEAWAY scam, to hijack popular YOUTUBE channels, to transfer ownership or control of those channels, and use them to Printed: 1/20/2022 01/20/2022 Hearing: Other - 20CV370338 Page 2 of 11 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER defraud and victimize YOUTUBE users. (|d., 60.) [T]o this day, YOUTUBE has failed to implement adequate security measures on its platform to prevent, deter, and otherwise combat the rampant hijacking and taking over of YOUTUBE channels by bad actors. (|bid.) For example, YOUTUBE should have, but unreasonably failed to, require multifactor authentication, human review, and/or other reasonable security measures to ensure that it was the actual owners of channels with tens or hundreds of thousands of subscribers, and not unauthorized third parties, who were engaging in the highly unusual, red-flag channel behavior described above. Given its deep knowledge of the [BITCOIN GIVEAWAY] scam, including scammers modus operandi in hijacking and taking over popular YOUTUBE channels , it was unreasonable for YOUTUBE to not require [these] measures before allowing such highly suspicious activity to occur on verified, Iong-established, or popular YOUTUBE channels. Similarly, YOUTUBE should have, but unreasonably failed to, require [these] measures when new video content is uploaded to channels with thousands of subscribers. (SAC, 61) YouTube s other security failures include falsely indicating that the BITCOIN GIVEAWAY scam is legitimate by displaying its own verification badge beside the names of channels that were furthering the swindle. (SAC, 62.) Plaintiffs allege that through this conduct, YouTube speaks on its own behalf, informing users (independent of any content on the channel) that this account is verified as the official channel of a creator, artist, company, or public figure and therefore can be trusted. (|bid.) Despite YOUTUBE s representations that its verification badges are a form of security and protection that its users can rely on, YOUTUBE has continued to maintain the verification of channels that have been hijacked to broadcast BITCOIN GIVEAWAY scam videos and, in at least one instance, even issued a verification badge to a channel at the very time it was actively broadcasting scam videos. YOUTUBE s users, including numerous Plaintiffs here, relied on YOUTUBE s representations that the verified channels are authentic . [T]he channels rightful owners made numerous reports to YOUTUBE that their channel had been hijacked, yet YOUTUBE failed to remove or suspend the pre-existing verification badge appearing on those channels, and failed to award [sic] verification badges to channels while they were actively perpetrating the scam. (SAC, 63) YouTube has also provided the scammers readymade tools of fraud, such as by giving users free reign to rename channels and/or accounts in ways that are obviously misleading, like renaming channels and/or accounts unaffiliated with Mr. Wozniak Steve Wozniak or Steve Wozniak Official. (SAC, 64.) Similarly, YouTube has falsely represented, and/or knowingly left in place negligently designed video metrics and other public-facing features of its platform that permit the scammers to falsely represent, that the scam videos are live when they are not, that large numbers of users who are currently watching live scam videos when they are not, and other similarly false or misleading statements of fact that cause the scam videos and promotions to appear authentic . (|d., 65 66, emphasis in original.) Plaintiffs reasonably relied on these video metrics and related information, and YouTube has long falsely assured the public that it doesn t allow anything that artificially increases the number of views, likes, comments, or other metrics either by using automatic systems or serving up videos to unsuspecting viewers. (|d., 66.) Printed: 1/20/2022 01/20/2022 Hearing: Other - 20CV370338 Page 3 of 11 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Moreover, Defendants produce video recommendations and targeted ads by collecting a wide array of personal information about their users, and they have continued to exploit this information to determine which users would be interested in scam videos, directly recommend such videos to them, and target them with ads. (SAC, 67 72.) Defendants have continued to sell targeted scam ads to scammers, and to deliver those ads directly to Plaintiffs and others who are likely to be interested, and who are thus most likely to be defrauded by the scheme. (|d., 68.) Plaintiffs were generally aware of and relied on the substance of Defendants representations about providing excellent security, protecting against scams, ensuring the accuracy of video metrics and other video and channel information, and the responsible use of Plaintiffs personal data, as reflected in Defendants public statements about these topics on their websites. (SAC, 73.) Plaintiffs and other users continue to encounter the same scam videos, video discovery ads, and in-stream advertising. (SAC, 88; see also 89 93.) Meanwhile, YouTube has robust and sophisticated tools to regulate content on its platform, and touts its ability to use them to detect scams which its Community Guidelines purport to bar. (|d., 95 96.) It could block and/or flag for human review the sale of advertisements based on their verbal content, such as ads that contain the phrases BTC GIVEAWAY or 5000 BTC or any one of the handful of words and phrases that consistently and repeatedly appear in the ads that Defendants knowingly sell to the scammers, but has refused to do so. (|d., 97.) In sum, Defendants have materially contributed to [the scam videos] by promoting [them] to a specific audience identified through its algorithm, by selling targeted ads driving traffic to the videos, by falsely verifying YOUTUBE channels that carry the videos and doing [nothing] to stop displaying its verification badge alongside verified channels that had been hijacked by scammers, and by providing false or misleading information to promote the videos. (|d., 120, emphasis in original.) C. Current Procedural Posture Based on these allegations, Plaintiffs currently assert the following causes of action in their SAC: (1) misappropriation of name or likeness (by Mr. Wozniak only); (2) fraud and misrepresentation; (3) aiding and abetting fraud; (4) unfair business practices; (5) negligence; (6) negligent failure to warn; (7) negligent design; (8) breach of implied contract; and (9) promissory estoppel. ||. DEMURRER Defendants demur to the SAC on the grounds that each of its claims is barred by Section 230 and otherwise fails to state a cause of action. Plaintiffs oppose both lines of attack as to each oftheir claims. A. Legal Standard A demurrer tests the legal sufficiency of the complaint. (Chen v. PayPaI, Inc. (2021) 61 Cal.App.5th 559, 568.) Consequently, it reaches only to the contents ofthe pleading and such matters as may be considered under Printed: 1/20/2022 01/20/2022 Hearing: Other - 20CV370338 Page 4 of 11 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER the doctrine ofjudicial notice. (Weil v. Barthel (1955) 45 Cal.2d 835, 837; see also Code Civ. Proc., 430.30, subd. (a).) It is not the ordinary function of a demurrer to test the truth of the plaintiff s allegations or the accuracy with which he describes the defendant s conduct. [T]he facts alleged in the pleading are deemed to be true, however improbable they may be. (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 958, internal citations and quotations omitted.) In ruling on a demurrer, the Court must liberally construe the allegations of the complaint, with a view to substantial justice between the parties. (Glennen v. Allergan, Inc. (2016) 247 Cal.App.4th 1, 6.) Nevertheless, while [a] demurrer admits all facts properly pleaded, [it does] not [admit] contentions, deductions or conclusions of law or fact. (George v. Automobile Club of Southern California (2011) 201 Cal.App.4th 1112, 1120.) A demurrer will succeed where the allegations and matters subject to judicial notice clearly disclose a defense or bar to recovery. (Casterson v. Superior Court (2002) 101 Cal.App.4th 177, 183.) Specifically with regard to CDA immunity, [w]hen a plaintiff cannot allege enough facts to overcome Section 230 immunity, a plaintiff s claims should be dismissed. (Dyroff v. Ultimate Software Grp., Inc. (9th Cir. 2019) 934 F.3d 1093, 1097 (Dyroff).) B. CDA Immunity Many of the allegations in the SAC are unchanged from those in the FAC. The June Order explained that those allegations failed to state any claim avoiding CDA immunity. The Court incorporates the discussion in the June Order as to those pre-existing allegations, as well as the legal standards and general principles governing CDA immunity, and will not repeat it here. Instead, this order will focus on the new facts and theories alleged in the SAC: first, the allegations concerning scammers hijacking of YouTube channels and Defendants leveraging of users personal information to target them with ads and videos (which Plaintiffs characterize as security - or design -re|ated claims) and second, the new contract-related causes of action. The order will also specifically address Plaintiffs newly emphasized failure to warn claim. But first, the Court will address a new authority bearing on its prior analysis in the June Order: Gonzalez v. Google LLC (9th Cir. 2021) 2 F.4th 871 (Gonzalez). 1. Gonzalez Among the authorities cited in the June Order was the district court s opinion in Gonzalez v. Google, Inc. (N.D. Cal. 2017) 282 F. Supp. 3d 1150, 1168 1170, which the Court cited for its holding that allegations that Google shared ad revenue with a terrorist group did not avoid CDA immunity. Gonzalez affirmed the district court, but with a nuance as to this part of its holding. Gonazlez involved claims pursuant to the federal Anti-Terrorism Act (ATA) arising from attacks attributed to the terrorist group ISIS. The plaintiffs alleged that Google s and other companies social media platforms allowed ISIS to post videos and other content to communicate [its] message, to radicalize new recruits, and to generally further its mission. Plaintiffs also claim that Google placed paid advertisements in proximity to ISIS- created content and shared the resulting ad revenue with ISIS. (Gonzalez, supra, 2 F.4th at p. 880.) Like the district court, the Ninth Circuit held that claims based on the first theory were barred by Section 230. (Id. at pp. 890 897.) But the revenue-sharing theory was different: This theory is premised on the allegation that because it shared advertising revenue with ISIS, Google should be held directly liable for providing material support to ISIS pursuant to [the ATA] . (Id. at pp. 897 898.) Printed: 1/20/2022 01/20/2022 Hearing: Other - 20CV370338 Page 5 of 11 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER The court explained: The Gonzalez Plaintiffs allege that each YouTube video must be reviewed and approved by Google before Google will permit advertisements to be placed with that video, and that Google has reviewed and approved ISIS videos for advertising. The Gonzalez Plaintiffs also allege that, because it approved ISIS videos for the AdSense program, Google shared a percentage of revenues generated from those advertisements with ISIS. (Gonzalez, supra, 2 F.4th at p. 898.) These allegations are premised on Google providing ISIS with material support by giving ISIS money. Thus, unlike the Gonzalez Plaintiffs other allegations, the revenue-sharing theory does not depend on the particular content ISIS places on YouTube; this theory is solely directed to Google s unlawful payments of money to ISIS. (|bid., italics original.) This is not what Plaintiffs allege here. The SAC does not reference the AdSense program or allege that Defendants share revenue with the scammers or giv[e] [them] money in violation of a statute comparable to the ATA. Rather, the SAC alleges that Defendants provide tools that the scammers use to effectively target victims, and passively profit from the scheme by selling ads to the scammers. These theories are more akin to the first theory alleged in Gonzalez that was barred by Section 230. For the reasons already discussed in the June Order, claims arising from these theories are barred. 2. Security - or Design -Re|ated Claims Plaintiffs contend that their new allegations about Defendants failing to prevent scammers from hijacking YouTube channels and misusing users personal information to effectively target victims constitute security - or design -re|ated claims that avoid CDA immunity. They emphasize two authorities in connection with this argument: Lemmon v. Snap, Inc. (9th Cir. 2021) 995 F.3d 1085 (Lemmon) and In re Zoom Video Communs. Privacy Litig. (N.D.Ca|. 2021) 525 F. Supp. 3d 1017 (Zoom). a. Lemmon Lemmon addressed a negligent design claim involving a smartphone application that allowed users to take photos or videos and superimpose a filter showing their reaI-Iife speed. (Lemmon, supra, 995 F.3d at pp. 1088 1090.) The teenage children of the plaintiffs were using this application when they drove at speeds of over 100 miles per hour and, tragically, crashed. (|bid.) The Ninth Circuit held this claim did not treat [the] defendant as a publisher or speaker of third-party content as required for CDA immunity to apply. (Id. at p. 1091.) Rather, it presented a clear example of a claim that simply does not rest on third-party content: [T]he Parents negligent design claim faults Snap solely for Snapchat s architecture, contending that the app s Speed Filter and reward system worked together to encourage users to drive at dangerous speeds. (|bid.) Notably, the Parents do not fault Snap in the least for publishing [a] snap. (|bid.) Lemmon affirmed that CDS immunity shields from liability those individuals or entities that operate internet platforms, to the extent their platforms publish third-party content. (Lemmon, supra, 995 F.3d at pp. 1090 1091.) And it emphasized that the Parents allegations [we]re not a creative attempt to plead around the Printed: 1/20/2022 01/20/2022 Hearing: Other - 20CV370338 Page 6 of 11 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER CDA, which poses a concern in cases where the claims at bottom, depend[] on a third party s content, without which no liability could [exist]. (Id. at p. 1094.) Here, by contrast, Plaintiffs claims do ultimately depend on third-party scammers posting harmful content. This case does not resemble Lemmon. b. Zoom Zoom involved claims based on third parties disrupting Plaintiffs Zoom meetings ( Zoombombing) by joining a meeting without authorization and, in most cases, proceeding to display harmful and/or offensive content to those present. (Zoom, supra, 525 F. Supp. 3d at pp. 1024 1025, 1028.) The district court held that Section 230(c)(1) mostly immunizes Zoom from [these] Zoombombing claims. (Id. at p. 1034.) Specifically, to the extent the plaintiffs sought to hold Zoom liable for the display of harmful content, the CDA barred these claims: Plaintiffs cannot hold Zoom liable for injuries stemming from the heinousness of third-party content. (Id. at p. 1030.) These claims (1) challenge the harmfulness of specific content provided by third parties; and (2) allege that Zoom should have done more to moderate or block that harmful content. (Id. at p. 1034.) The district court affirmed that Zoom s failure to edit or block user-generated content is the very activity Congress sought to immunize via the CDA. (Id. at p. 1035, internal citation and quotation marks omitted.) But the security-based subset of Plaintiffs claims involving unauthorized intrusions into private meetings was different. (Id. at p. 1031.) These claims either did not challenge the harmfulness of third-party content and/or did not derive from the defendant s status or conduct as a publisher or speaker of that content. (Id. at pp. 1032 1035.) Beyond the contract-related claims discussed below, Zoom did not clearly articulate exactly what these claims alleged because Plaintiffs themselves did not. (See id. at p. 1035 [sustaining motion to dismiss with leave to amend and directing that Plaintiffs second amended complaint should more clearly articulate those [content-neutral] claims ].) But one potential example was summarized at the beginning of the opinion, involving a burlesque dance studio operator s loss of business due to uninvited men dropping in to her classes. (See id. at p. 1025.) In that example, the mere presence of the men in the classes may have caused harm even if they never said a word or shared an image. Unlike the security-based claims in Zoom, the claims here challenge the harmfulness of content provided by scammers and derive from Defendants status as a publisher or speaker of that content. The claims are more like those that Zoom held were barred by CDA immunity, in that they allege harm arising not from the mere fact of a security breach, but from the fact that third parties used that security breach to communicate harmful content. Zoom confirms that such claims are barred under Section 230. c. conclusion Plaintiffs security and design theories still at bottom, depend[] on a third party s content, without which no liability could [exist]. (Lemmon, supra, 995 F.3d at pp. 1094.) Lemmon and Zoom support, rather than undermine, the conclusion that CDA immunity bars these claims. 3. Contract-Related Claims Finally, Plaintiffs urge that their new claims for breach of implied contract and promissory estoppel avoid Printed: 1/20/2022 01/20/2022 Hearing: Other - 20CV370338 Page 7 of 11 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER CDA immunity. With respect to this argument, they emphasize Zoom and one of the primary authorities on which it relies, Barnes v. Yahool, Inc. (9th Cir. 2009) 570 F.3d 1096 (Barnes). a. Plaintiffs allegations In support of the claim for breach of implied contract, Plaintiffs allege that they provided Defendants access to their personal non-public information as consideration for using the array of online services, including Gmail and YouTube, that Defendants provide. (SAC, 186.) By providing and accepting that information, Plaintiffs and Defendants entered into implied contracts, pursuant to which Defendants agreed to take reasonable steps to protect the confidentiality of Plaintiffs private non-public information, to not use or permit others to use that information for an unlawful purpose or in a way that would foreseeably harm Plaintiffs, etc., and not to expose Plaintiffs to an unreasonable risk of harm [while] using Defendants websites, such as by Defendants knowingly allowing criminals to use their websites to defraud Plaintiffs. (|d., 188.) Defendants willfully violated Plaintiffs privacy interests by routinely selling, sharing, or otherwise disclosing Plaintiffs personal non-public information to criminals behind the BITCOIN GIVEAWAY scam for the purposes selling [sic] scam ads targeted at Plaintiffs and failed to take reasonable steps to avoid exposing Plaintiffs to unreasonable risks of harm, such as by recommending that they watch scam videos and by having lax security practices that made YOUTUBE channels unreasonably vulnerable to unauthorized access and hijacking by criminals. (|d., 193.) As to the promissory estoppel claim, Plaintiffs allege that Defendants made various public and widely publicized promises about providing excellent security, protecting against scams, ensuring the accuracy of video metrics and other video and channel information, and using Plaintiffs personal non-public information and data in a responsible way . (SAC, 197 [referencing statements alleges at paragraphs 59, 66 68, and notes 4 9 of the SAC].) Plaintiffs relied on these statements by us[ing] Defendants websites and online services more than [they] otherwise would have; refrain[ing] from seeking out alternative services that might present less of a risk to their privacy, security, and well-being; and [being] significantly less skeptical of the legitimacy and accuracy of content and information that they viewed on YOUTUBE than they otherwise would have been, including with respect to BITCON GIVEAWAY scam videos and ads. (|d., 199.) b. analysis In assessing whether a claim treats a provider as a publisher or speaker of user-generated content for purposes of CDA immunity, courts focus not on the name of the cause of action, but whether the plaintiff s claim requires the court to treat the defendant as the publisher or speaker of information created by another. (Murphy v. Twitter, Inc. (2021) 6O Cal.App.5th 12, 26 (Murphy), citing Barnes, supra, 570 F.3d at pp. 1101 1102 and Cross v. Facebook, Inc. (2017) 14 Cal.App.5th 190, 207 (Cross).) This test prevents plaintiffs from avoiding the broad immunity of section 230 through the creative pleading of barred claims or using litigation strategy to accomplish indirectly what Congress has clearly forbidden them to achieve directly. (Id. at pp. 26 27, quoting Hassell v. Bird (2018) 5 Ca|.5th 522, 542, 541 (plur. opn.) (Hassell), internal quotation marks and other notations omitted.) While some courts have rejected the application of section 230 immunity to certain breach of contract and promissory estoppel claims, many others have concluded such claims were barred because the plaintiff's cause of action sought to treat the defendant as a publisher or speaker of user generated content. (Murphy, Printed: 1/20/2022 01/20/2022 Hearing: Other - 20CV370338 Page 8 of 11 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER supra, 6O Cal.App.5th at p. 28 [collecting cases].) That was the case in Murphy, where the plaintiff asserted claims based on Twitter s blocking of her content in supposed contravention of its own terms of service and related policies. Murphy explained that the substance of [the] complaint accuses Twitter of unfairly applying its general rules regarding what content it will publish . Murphy does not allege someone at Twitter specifically promised her they would not remove her tweets or would not suspend her account. Rather, Twitter s alleged actions in refusing to publish and banning Murphy s tweets, as the trial court in this case observed, reflect paradigmatic editorial decisions not to publish particular content that are protected by section 230. (Murphy, supra, 60 Cal.App.5th at p. 29.) Murphy distinguished Barnes on the ground that in that case, the plaintiff sought damages for breach of a specific personal promise made by an employee to ensure specific content was removed from Yahoo s website. (Id. at p. 29.) Barnes must be distinguished from this case for the same reason. And Murphy approved Cross, which like this case involved liability for a service provider s failure to remove third party content. (Id. at p. 31.) Cross arose from the plaintiff s allegations that Facebook improperly failed to remove a page that incited violence and generated death threats against him. (Cross, supra, 14 Cal.App.5th at p. 194.) The court of appeal held that the entire complaint, including claims for breach of contract and negligent misrepresentation based on Facebook s terms of service and related policies, must be struck as unmeritorious pursuant to the anti-SLAPP statute. The theory in Cross was similar to Plaintiffs promissory estoppel theory here: plaintiffs alleged that Facebook s terms of service prohibited harassing and violent speech against Facebook users [and] made an explicit promise to [plaintiff]: We remove credible threats of physical harm to individuals. Facebook also stated that [w]e want people to feel safe when using Facebook, and agreed to remove content, disable accounts, and work with law enforcement when we believe there is a genuine risk of physical harm or direct threats to public safety. (Cross, supra, 14 Cal.App.5th at p. 201.) But Cross explained that even if statements in Facebook s terms could be construed as obligating Facebook to remove the pages [,] it would not alter the reality that the source of [plaintiff s] alleged injuries, the basis for his claim, is the content ofthe pages and Facebook s decision not to remove them. (Cross, supra, 14 Cal.App.5th at pp. 201 202.) So despite the plaintiff s argument that he only sought to enforce Facebook s own promises and representations to him (id. at p. 206, italics original), these claims were barred by CDA immunity (id. at pp. 206 207). While styled as claims for breach of contract and negligent misrepresentation, the claims treated Facebook as a publisher and sought to hold it liable for harmful third-party content. The same is true here, as to both the promissory estoppel and implied contract claims. In Zoom, by contrast, the contract-related claims were akin to the security based claims discussed above, in that they did not depend on third-party content. (See King v. Facebook, Inc. (N.D.Cal. Nov. 12, 2021, No. 21- cv-O4573-EMC) 2021 U.S.Dist.LEXIS 219277, at *35, fn. 7 [noting that the implied contract theory in Zoom alleged Defendant was obligated to provide Plaintiffs with Zoom meetings that were suitable for their intended purpose of providing secure video conferencing services, rather than other video conferencing Printed: 1/20/2022 01/20/2022 Hearing: Other - 20CV370338 Page 9 of 11 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER services vulnerable to unauthorized access ].) To the extent Zoom suggests that contract-related claims are categorically exempt from CDA immunity, the Court disagrees (see id. at *35 36 [rejecting such a categorical rule]), and in any event, it is bound to follow Cross and Murphy on this point. Pursuant to Cross and Murphy, Plaintiffs contract-related claims are barred by Section 230. 4. Failure to Warn Finally, Plaintiffs urge that their failure to warn claim avoids CDA immunity, citing Doe v. Internet Brands, Inc. (9th Cir. 2016) 824 F.3d 846 (Internet Brands). But in that case, the failure to warn claim ha[d] nothing to do with Internet Brands efforts, or lack thereof, to edit, monitor, or remove user generated content. (Id. at p. 852.) Here, Plaintiffs failure to warn claim alleges that Defendants failed to take exactly these types of actions the same asserted failures they point to in connection with their other claims. (See SAC, 94 97.) Plaintiffs specifically cite YouTube s ability to monitor channel activity and to identify, flag, and remove fraudulent content . (Id. at 95.) To the extent that a portion of Plaintiffs failure to warn claim arises from allegations that Defendants had knowledge of the scheme at issue and fai|[ed] to generate [their] own warning the theory held to avoid CDA immunity in Internet Brands this theory requires Plaintiffs to show Defendants had a duty of care based on misfeasance or a special relationship with them. (Internet Brands, supra, 824 F.3d at pp. 850, 852 [noting that the existence of a special relationship was not before the court on appeal].) But the Ninth Circuit s recent opinion in Dyroff rejected this notion in circumstances fundamentally the same as those here: where bad actors allegedly used neutral tools provided by the defendant to promote harmful content. (See Dyroff, supra, 934 F.3d at pp. 1100 1101.) C. Conclusion For these reasons as well as the reasons discussed in the June Order, the Court again SUSTAINS Defendants demurrer in its entirety based on CDA immunity (and on the alternative ground that Plaintiffs fail to state a claim for failure to warn, to the extent a portion of that claim avoids CDA immunity). Plaintiffs do not explain how they could amend their complaint to avoid CDA immunity and no reasonable possibility of this appears to the Court. So this time, the Court will not grant leave to amend. (See Camsi IV v. Hunter Technology Corp. (1991) 230 Cal.App.3d 1525, 1542 [absent an effective request for leave to amend in specified ways, it is an abuse of discretion to deny leave to amend only if a potentially effective amendment were both apparent and consistent with the plaintiff s theory of the case ]; see also Hendy v. Losse (1991) 54 Cal. 3d 723, 742 [the burden is on the plaintiff to demonstrate the manner in which the complaint might be amended ].) Finally, because the demurrer must be sustained without reference to these documents, the Court DENIES Defendants request forjudicial notice of YouTube s Terms of Service and Privacy Policy as moot. Printed: 1/20/2022 01/20/2022 Hearing: Other - 20CV370338 Page 10 of 11 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER |||. MOTION TO LIFT DISCOVERY STAY The August Order explained the Court s view that the public policy supporting CDA immunity generally overrides a plaintiff s right to discovery where the operative complaint fails to allege any claim avoiding Section 230. The Court stands by that reasoning, and the operative complaint still does not state a claim that avoids CDA immunity. So the Court again DENIES Plaintiffs motion to lift the discovery stay. The Court will prepare the order. Defendants shall prepare and lodge a proposed judgment with Plaintiffs input as to form. Printed: 1/20/2022 01/20/2022 Hearing: Other - 20CV370338 Page 11 of 11
