Order Submitted Matter

Cal. Super. - 6th Dist.September 11, 2020

KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA STEVE WOZNIAK et al., Case N0.: 20CV370338 Plaintiffs, ORDER CONCERNING V. DEFENDANTS’ DEMURRER YOUTUBE, LLC et al., Defendants. This action arises from a scam that uses images and Videos 0f plaintiff Steve Wozniak and other famous technology entrepreneurs t0 fraudulently induce individuals t0 send cryptocurrency t0 the scammers. Mr. Wozniak and the other plaintiffs (collectively “Plaintiffs”), who are Victims 0f the scam, allege that defendants YouTube, LLC and Google, LLC (collectively “Defendants”) contribute t0 this scheme by promoting scam Videos 0n the YouTube platform, selling targeted ads that drive traffic t0 such Videos, falsely verifying YouTube channels that carry such Videos, and providing other false and misleading information t0 promote these Videos. Defendants now demur t0 each cause 0f action in the operative Amended Complaint (“AC”). Defendants contend that Plaintiffs’ claims are barred by section 230 0f ORDER ON SUBMITTED MATTER Electronically Filed by Superior Court of CA, County of Santa Clara, on 6/10/2021 12:44 PM Reviewed By: R. Walker Case #20CV370338 Envelope: 6624315 KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO the Communications Decency Act (the “CDA”)1 and otherwise fail t0 state a cause 0f action. (Code CiV. Proc., § 430.10, subd. (6).) As discussed below, the Court SUSTAINS Defendants’ demurrer based 0n CDA immunity, but gives Defendants 30 days t0 amend. I. BACKGROUND As alleged by Plaintiffs, Mr. Wozniak is a Silicon Valley icon who co-founded Apple Computer in the 19703 and has since engaged in many entrepreneurial and philanthropic ventures. (AC, 1] 17.) He is a widely known, recognized, and beloved public figure. (Ibid) Along with Mr. Wozniak, seventeen individual Victims 0f the scam giving rise t0 this action, who reside across the country and around the world, are named as Plaintiffs. (See id., W 18-34.) YouTube is a Video-sharing platform that generates billions 0f dollars in annual revenue, and a wholly-owned subsidiary 0f Google. (AC, W 36, 54.) YouTube’s primary source 0f revenue is from selling ads t0 third parties, and both YouTube and Google profit from the personal data 0f users, which allows them t0 sell highly targeted ads. (Id., 1] 54.) A. The Bitcoin Giveaway Scam Plaintiffs allege that for over a year, YouTube has been hosting, promoting, and directly profiting from scam Videos and paid promotions that use images and Videos 0f Mr. Wozniak and other famous tech entrepreneurs t0 defraud YouTube users out 0f millions 0f dollars. (AC, 1] 2.) The scammers use these images and Videos t0 convince YouTube users that they are hosting a live “BTC” or “BITCOIN GIVEAWAY” event and that, for a limited time, anyone who sends their bitcoin t0 a specified account will receive twice as much back. (Ibid) But when users transfer their cryptocurrency, the scam is complete, as the transaction is irreversible. (Ibid) 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 t0 eliminate it from its platform, and that the scam had now made its way t0 YouTube. (AC, 1] 67.) Media continued t0 report that this scam was appearing 0n YouTube, and that YouTube’s algorithm was “actively promoting” it. (Id.,W 68-72.) A version 0f the scam that misappropriates Mr. Wozniak’s name, 1 A11 future statutory references are t0 this section unless otherwise stated. KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO image, and likeness has repeatedly appeared since at least May 8, 2020. (Id., 1] 73.) 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 t0 appear 0n YouTube. (1d,, W 74-76.) The other Plaintiffs have also repeatedly informed Defendants 0f the scam and demanded that YouTube take action. (Id, 1] 77.) B. Defendants’ Alleged Contributions t0 the Scam Plaintiffs allege that they have been harmed by “YOUTUBE’S deliberate and inexplicable failure t0 address the promotion 0f a pervasive fraud occurring 0n its platform.” (AC, 1] 49.) “For months 0n end, the BITCOIN GIVEAWAY scam has been replicated 0n YOUTUBE many times over in substantially the same form.” (Id., 1] 5 1 .) These swindle Videos and promotions are substantially similar in title and appearance, reuse many 0f the same words and phrases, reuse the same celebrities (including WOZNIAK), and reuse the same past Video footage 0f those celebrities.” (Ibid) “YOUTUBE’S egregious refusal t0 protect its users by taking timely action and its active participation in promoting and profiting from the BITCOIN GIVEAWAY scam has materially contributed t0 the scam and caused Plaintiffs’ harm.” (Id, 1] 53.) According t0 Plaintiffs, YouTube “has not only allowed the BITCOIN GIVEAWAY scam t0 flourish but has promoted and materially contributed t0 the scam.” (AC, 1] 58.) “For example, YOUTUBE has repeatedly and falsely represented that the scam Videos are ‘live’ when they are not, that large numbers 0f users are watching the Videos when they are not, that large numbers 0f users have ‘liked’ the Videos when they have not, and other similarly false 0r misleading statements 0f fact that cause the Videos and promotions t0 appear authentic, thereby increasing the number 0f Victims and the amount 0f cryptocurrency taken by the scam.” (Ibid) In addition, YouTube’s algorithm tailors recommended Videos t0 users based 0n a variety 0f factors including clicks, watch time, likes/dislikes, comments, freshness, and upload frequency. (Id., 1] 60.) The algorithm “is geared towards maximizing Viewer engagement, even if it means promoting scam Videos intended t0 dupe the audience,” and it recommended and promoted the Videos and scam advertisements that Plaintiffs watched. (Ibid) “Video discovery ads” and “in- KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO stream ads” are particularly effective vehicles “by which [defendants] can deliver scam ads 0n behalf 0f the scammers” t0 particularly vulnerable users. (Id, W 64-65.) YOUTUBE has also falsely indicated that the BITCOIN GIVEAWAY scam is legitimate by displaying its own “verification badge” beside the names 0f channels that were furthering the scam. A verification badge communicates, among other things, that a channel “represent[s] the real creator, brand, 0r entity it claims t0 be” because YOUTUBE has “check[ed] different factors t0 help verify [the channel owner’s] identity.” Through this communicative conduct, YOUTUBE is speaking on its own behalf, informing its users (independent 0f any content 0n the channel) that this account is verified as “the official channel 0f a creator, artist, company, 0r public figure” and therefore can be trusted. (AC, 1] 61 .) YouTube has also “provided the scammers readymade tools 0f fraud, such as by giving users free reign t0 rename channels and/or accounts in ways that are obviously misleading, such as allowing scammers t0 rename channels and/or accounts ‘Steve Wozniak’ 0r ‘Steve Wozniak Official,’ thereby providing yet another information point t0 mislead its users into believing that the scam is a legitimate live event.” (AC, 1] 62.) “YOUTUBE has consistently failed 0r refused t0 intervene in a timely manner, t0 stop contributing t0 the scam, and t0 stop selling ads for the scam Videos and promotions.” (AC, 1] 79.) “Plaintiffs and other users continue t0 encounter the same scam Videos, Video discovery ads, and in-stream advertising.” (Id., 1] 8 1 .) YouTube has “robust and sophisticated tools t0 regulate content 0n its platform,” and touts its ability t0 use them t0 detect scams-which its Community Guidelines purport t0 bar. (Id,w 82-84.) It could “block and/or flag for human review the sale 0f advertisements based 0n their verbal content, such as ads that contain the phrases “BTC GIVEAWAY” 0r “5000 BTC” 0r any one 0f the handful 0f words and phrases that consistently and repeatedly appear in the ads that Defendants knowingly sell t0 the KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO scammers,” but has refused t0 d0 so. (Id., 1] 85.) In sum, Defendants have “materially contributed t0 [the scam Videos] by promoting [them] t0 a specific audience identified through its algorithm, by selling targeted ads driving traffic t0 the Videos, by falsely verifying YOUTUBE channels that carry the Videos, and by providing false and misleading information t0 promote the Videos.” (Id., 1] 108, emphasis in original.) C. Current Procedural Posture Based 0n these allegations, Plaintiffs currently assert the following causes 0f action in their AC: (1) misappropriation 0fname 0r likeness (by Mr. Wozniak only); (2) fraud and misrepresentation; (3) aiding and abetting fraud; (4) unfair business practices; (5) negligence; (6) negligent failure t0 warn; and (7) injunctive relief. Defendants demurred t0 the AC, and Plaintiffs opposed the demurrer. The Court heard oral argument 0n June 3, 2021, and took the matter under submission. The Court now issues its final ruling. II. LEGAL STANDARD The function 0f a demurrer is t0 test the legal sufficiency 0f a pleading. (Trs. ofCapital Wholesale Elec. Etc. Fund v. Shearson Lehman Bros. (1990) 221 Cal.App.3d 617, 621 .) Consequently, “[a] demurrer reaches only t0 the contents 0f the pleading and such matters as may be considered under the doctrine ofjudicial notice.” (South Shore Land C0. v. Petersen (1964) 226 Cal.App.2d 725, 732, internal citations and quotations omitted; see also Code CiV. Proc., § 430.30, subd. (a).) “It is not the ordinary function 0f a demurrer t0 test the truth 0f the plaintiff’s allegations 0r the accuracy with which he describes the defendant’s conduct. Thus, the facts alleged in the pleading are deemed t0 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 allegations 0f the complaint must be liberally construed, with a View t0 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 0r conclusions 0f law 0r fact.” (George v. Automobile Club ofSouthern California (201 1) 201 Cal.App.4th 1112, 1120.) A demurrer will succeed where the KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO allegations and matters subject t0 judicial notice clearly disclose a defense 0r bar t0 recovery. (Casterson v. Superior Court (2002) 101 Cal.App.4th 177, 183.) Specifically with regard t0 CDA immunity, “[W]hen a plaintiff cannot allege enough facts t0 overcome Section 230 immunity, a plaintiff’s claims should be dismissed.” (Dyroflv. Ultimate Software G171, Inc. (9th Cir. 2019) 934 F.3d 1093, 1097 (Dyroflfl III. REQUEST FOR JUDICIAL NOTICE While Plaintiffs d0 not appear t0 oppose it, Defendants’ request for judicial notice 0f YouTube’s Terms 0f Service and Community Guidelines is DENIED. Defendants barely mention these documents in their briefing, so it is not clear exactly what content for which they seek judicial notice. Moreover, the AC barely mentions the Community Guidelines and never mentions the Terms 0f Service. It is sometimes appropriate t0 take judicial notice 0f similar documents under the incorporation-by-reference doctrine, where they “form the basis 0f the allegations in the complaint” but may be selectively quoted therein. (Ingram v. Flippo (1999) 74 Cal.App.4th 1280, 1285, fn. 3.) But that doctrine does not apply here. IV. DISCUSSION Defendants’ primary argument is that each 0f Plaintiffs’ claims is barred by immunity conferred by section 230(c)(1) 0f the CDA. Plaintiffs disagree. A. CDA Immunity One important obj ective 0f the CDA “was t0 avoid the chilling effect upon Internet free speech that would be occasioned by the imposition 0f tort liability upon companies that d0 not create potentially harmful messages but are simply intermediaries for their delivery.” (Delfino v. Agilem‘ Technologies, Inc. (2006) 145 Cal.App.4th 790, 802-803.) The legislative history reflects that Congress was responding t0 a New York trial court case where “a service provider was held liable for defamatory comments posted 0n one 0f its bulletin boards, based 0n a finding that the provider had adopted the role 0f ‘publisher’ by actively screening and editing postings.” (Barrett v. Rosenthal (2006) 40 Cal.4th 33, 44.) “Fearing that the specter 0f liability would deter service providers from blocking and screening offensive material, Congress forbade the imposition 0f publisher liability 0n a service provider for the exercise 0f its editorial KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO and self-regulatory functions.” (Id., internal quotation marks and citation omitted.) Thus, the CDA “confer[s] broad immunity 0n Internet intermediaries” so as t0 help “maintain[] a free market for online expression.” (Hassell v. Bird (201 8) 5 Cal.5th 522, 539, international quotation marks and citation omitted (Hassell).) The CDA provides such broad immunity through section 230(c)(1). This section provides that “[n]0 provider 0r user 0f an interactive computer service shall be treated as the publisher 0r speaker 0f any information provided by another information content provider.” “§ 230 precludes courts from entertaining claims that would place a computer service provider in a publisher’s role. Thus, lawsuits seeking t0 hold a service provider liable for its exercise 0f a publisher’s traditional editorial functions-such as deciding whether t0 publish, withdraw, postpone 0r alter content-are barred.” (Hassell, supra, 5 Cal.5th at p. 536, internal quotation marks and citation omitted.) There is a “general consensus” by courts across the country, including in California, that section 230(c)(1) immunity is t0 be construed broadly. (See Doe II v. MySpace Inc. (2009) 175 Cal.App.4th 561, 572-573; accord Hassell, supra, 5 Cal.5th at p. 537.) For example, “[n]umerous courts have held the CDA bars claims based 0n a failure t0 remove content posted by others.” (Cross v. Facebook, Inc. (2017) 14 Cal.App.5th 190, 207 [citing cases]; accord Fair Hous. Council v. R00mmates.com, LLC (9th Cir. 2008) 521 F.3d 1157, 1170-1 171 (Roommates) [“any activity that can be boiled down t0 deciding whether t0 exclude material that third parties seek t0 post online is perforce immune under section 230.”].) In addition, a service provider’s motive in deciding whether t0 remove content from its service is not relevant when deciding section 230(c)(1) immunity. (See Hassell, supra, 5 Cal.5th at p. 540; Spy Phone Labs LLC v. Google Inc. (N.D.Ca1. Oct. 14, 2016, N0. 15-CV-03756-KAW) 2016 U.S.Dist.LEXIS 143530, at *26 [“Section 230(c)(1) immunity by its plain terms does not require good faith (by a service provider)”] .) In summary, immunity under section 230(c)(1) requires the following: “(1) the defendant be a provider 0r user 0f an interactive computer service; (2) the cause 0f action treat the defendant as a publisher 0r speaker 0f information; and (3) the information at issue be provided KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO by another information content provider.” (Gentry v. eBay, Inc. (2002) 99 Cal.App.4th 816, 830 (Gentry).) B. Analysis This background makes it clear that claims arising from YouTube’s continued failure t0 remove the scam Videos and advertisements at issue-however “inexplicable” 0r even “deliberate” it may be-is subj ect t0 CDA immunity. After all: a) YouTube is undisputedly a provider 0f an interactive computer service; b) the claims arise from YouTube’s role as a publisher (0r “de-publisher” in this case) 0f information; and c) the information came from someone else (the scammer). (See Gentry, supra, 99 Cal.App.4th at p. 830.) In an attempt t0 avoid this immunity, Plaintiffs allege that YouTube did not merely fail t0 remove content, but “materially contributed t0 [the scam Videos] by promoting [them] t0 a specific audience identified through its algorithm, by selling targeted ads driving traffic t0 the Videos, by falsely verifying YOUTUBE channels that carry the Videos, and by providing false and misleading information t0 promote the Videos.” (161., 1] 108, emphasis original.) Returning t0 the elements 0f section 230(c)(1) immunity, there does not appear t0 be any dispute that YouTube is a provider 0f an interactive computer service, as mentioned above. The issues are whether Plaintiffs’ claims “(2) treat the defendant as a publisher 0r speaker 0f information” that is “(3) provided by another information content provider.” (Gentry, supra, 99 Cal.App.4th at p. 830.) 1. Treatment as publisher Plaintiffs argue that, rather than treating Defendants as a publisher 0f information, they “seek t0 hold Defendants liable for their conduct 0f selling ads that they knew would further entirely criminal activity.” But the advertisements at issue are information published by Defendants, just like the Videos are. Publishing 0r “selling” ads may be “conduct,” but it is the type 0f conduct that is addressed by section 230(c)(1). This factor is satisfied. (See Dyrofif supra, 934 F.3d at pp. 1099-1 100 [allegations that web site colluded with drug dealer because it knew 0r should have known that users sold drugs 0n its service and enabled this with anonymity policies did not avoid CDA immunity].) KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO 2. Information provided by another information contentprovider Section 230(c)(1) applies “only if the interactive computer service provider is not also an ‘information content provider,’ which is defined as someone who is ‘responsible, in whole 0r in part, for the creation 0r development 0f” the offending content. Id. § 230(f)(3).” (Roommates, supra, 521 F.3d at p. 1162.) In Roommates, the Ninth Circuit held that a housing website that “require[ed] subscribers t0 disclose their sex, family status and sexual orientation” 0n its website was the creator 0f that content. (Id. at p. 1164 [“Roommate created the questions and choice 0f answers, and designed its website registration process around them. Therefore, Roommate is undoubtedly the ‘information content provider’ as t0 the questions and can claim n0 immunity for posting them 0n its website, 0r for forcing subscribers t0 answer them as a condition 0f using its services.”].) The decision emphasized that its holding should not be extended t0 neutral web site functions: It’s true that the broadest sense 0f the term “develop” could include the functions 0f an ordinary search engine--indeed, just about any function performed by a website. But t0 read the term so broadly would defeat the purposes 0f section 230.... At the same time, reading the exception for co-developers as applying only t0 content that originates entirely with the website ignores the words “development . . . in part” in the [statute]. We believe that both the immunity for passive conduits and the exception for co-developers must be given their proper scope and, t0 that end, we interpret the term “development” as referring not merely t0 augmenting the content generally, but t0 materially contributing t0 its alleged unlawfulness. In other words, a website helps t0 develop unlawful content, and thus falls within the exception t0 section 230, if it contributes materially t0 the alleged illegality offhe conduct. (Roommates, supra, 521 F.3d at pp. 1167-1 168, italics added.) KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO For example, providing “neutral tools” for users t0 find information is not “development” under section 230. (Id. at p. 1169.) So “[i]f an individual uses an ordinary search engine t0 query for a ‘white roommate,’ the search engine has not contributed t0 any alleged unlawfulness in the individual’s conduct. . . .” (Ibid) And editing content in a manner that does not contribute t0 its alleged illegality also does not suffice. (Ibid.) The Ninth Circuit has since emphasized that “the immunity in the CDA is broad enough t0 require plaintiffs alleging” that “the defendant fabricated content under a third party’s identity” t0 specifically state facts plausibly supporting this conclusion rather than alleging it in general terms. (Kimzey v. Yelp! Inc. (9th Cir. 2016) 836 F.3d 1263, 1269.) “Plaintiff[s] cannot plead around Section 230 immunity by framing [neutral] website features as content.” (Dyrofif supra, 934 F.3d at p. 1098.) Roommates emphasized that its holding should be construed narrowly in favor 0f immunity: Websites are complicated enterprises, and there will always be close cases where a clever lawyer could argue that something the website operator did encouraged the illegality. Such close cases, we believe, must be resolved in favor 0f immunity, lest we cut the heart out 0f section 230 by forcing websites t0 face death by ten thousand duck-bites, fighting off claims that they promoted 0r encouraged--or at least tacitly assented t0--the illegality 0f third parties. Where it is very clear that the website directly participates in developing the alleged illegality[,] immunity will be lost. But in cases 0f enhancement by implication 0r development by inference[,] section 230 must be interpreted t0 protect websites not merely from ultimate liability, but from having t0 fight costly and protracted legal battles. (Roommates, supra, 521 F.3d at pp. 1174-1 175.) “The message t0 website operators is clear: If you don’t encourage illegal content, 0r design your website t0 require users t0 input illegal content, you will be immune.” (Id. at p. 1175.) 10 KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO Here, as mentioned above, Plaintiffs allege that YouTube did not merely fail t0 remove content, but “materially contributed t0 [the scam Videos] by promoting [them] t0 a specific audience identified through its algorithm, by selling targeted ads driving traffic t0 the Videos, by falsely verifying YOUTUBE channels that carry the Videos, and by providing false and misleading information t0 promote the Videos.” (Id., 1] 108, emphasis original.) But there is n0 allegation that the “algorithm” at issue is anything but a “neutral tool.” Similarly, Plaintiffs d0 not allege that YouTube’s supposed “ad targeting” is somehow non- neutral. Nor d0 they allege any conduct by Defendants that affirmatively “encourage[s] illegal content” 0r “contributes materially t0 the alleged illegality 0f the conduct” at issue. At most, Plaintiffs allege that Defendants have turned a blind eye t0 illegal conduct and even passively profited from it, but that is not enough t0 show content creation 0r development under section 230 so t0 avoid CDA immunity. Plaintiffs allege that the third-party scam at issue is more effective by Virtue 0f Defendants’ “neutral tools” and neutral editing 0f content, but that does not show “development” for purposes 0fCDA immunity. Caselaw confirms that the maj ority 0f the conduct Plaintiffs describe is within the scope 0fCDA immunity. (See Gonzalez v. Google, Inc. (N.D.Cal. 2017) 282 F. Supp. 3d 1150, 1168-1 170 [allegations that Google shared ad revenue with terrorist group did not avoid CDA immunity; “Google’s provision 0f neutral tools, including targeted advertising, does not equate t0 content development under section 230, because as currently alleged, the tools d0 not encourage the posting 0f unlawful 0r objactionable material”]; Goddard v. Google, Inc. (N.D.Cal. 2009) 640 F.Supp.2d 1193, 1197 [“[e]ven assuming that Google is aware 0f fraud in the mobile subscription service industry and yet disproportionately suggests the term ‘free ringtone’ in response t0 an advertiser’s entry 0f the term ‘ringtone,’ Plaintiff” s argument that the Keyword T001 ‘materially contributes’ t0 the alleged illegality does not establish developer 1iability”].) With regard t0 their summary allegations that YouTube provided “false and misleading information t0 promote the Videos,” AC, 1] 108 (emphasis removed), Plaintiff have provided the following specific allegations in their AC: 11 KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO o “For example, YOUTUBE has repeatedly and falsely represented that the scam Videos are ‘live’ when they are not, that large numbers 0f users are watching the Videos when they are not, that large numbers 0f users have ‘liked’ the Videos when they have not, and other similarly false 0r misleading statements 0f fact that cause the Videos and promotions t0 appear authentic, thereby increasing the number 0f Victims and the amount 0f cryptocurrency taken by the scam.” (AC, 1] 58.) o YouTube has also “provided the scammers readymade tools 0f fraud, such as by giving users free reign t0 rename channels and/or accounts in ways that are obviously misleading, such as allowing scammers t0 rename channels and/or accounts ‘Steve Wozniak’ 0r ‘Steve Wozniak Official,’ thereby providing yet another information point t0 mislead its users into believing that the scam is a legitimate live event.” (AC, 1] 62.) But these allegations relate primarily t0 YouTube’s “neutral tools” (e.g., ability t0 rename channels, counting 0f Views and “likes,” etc.) These allegations accordingly fail for the same reason Plaintiff” s “ad targeting”- and algorithm-based claims fail. That leaves the “verification badge” theory 0f content development. The Court agrees that YouTube providing a verification badge t0 the wrong person would amplify more directly scammers’ own methods 0f duping users into believing content was endorsed by Mr. Wozniak 0r another legitimate source. But the Court cannot therefore conclude that badges apparently intended t0 verify accounts in order t0 thwart scammers instead encourage illegal conduct 0r materially contribute t0 its illegality just because they sometimes fail. Plaintiffs allege that the badges “communicate [], among other things, that a channel ‘represent[s] the real creator, brand, 0r entity it claims t0 be’ because YOUTUBE has ‘check[ed] different factors t0 help verify [the channel owner’s] identity.’ ” (AC, 1] 61.) But they d0 not allege what factors YouTube claims t0 check 0r that it fails t0 check these factors with regard t0 the bitcoin scam. While YouTube might not enjoy CDA immunity with regard t0 allegations 12 H that it misrepresented its process 0f verifying accounts, the Court cannot conclude that the failure 0f its process t0 always reach the correct result materially contributed t0 the illegality 0f scammers’ intentional fraud and misuse 0f entrepreneurs’ likenesses. The Court bears in mind the Ninth Circuit’s guidance that “in cases 0f enhancement by implication section 230 must be interpreted t0 protect websites.” And critically, one underlying purpose 0fCDA immunity is t0 encourage service providers t0 make exactly the type 0f voluntary attempt t0 reduce objectionable content that the badges represent, without raising the specter 0f litigation over whether the effort could 0r should have been more effective. KOOONONUI-bUJN NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO A similar theory t0 Plaintiffs’ was alleged and rejected in Gentry. There, the plaintiffs alleged that eBay has advertised that, ‘A positive eBay rating is worth its weight in gold.’ A dealer 0r consumer who achieves a designated level 0f Positive Feedback is awarded a star symbol display next t0 the user name, which is color coded t0 indicate the amount 0f Positive Feedback received by the user. [1]] . . . In addition t0 the Feedback Forum, eBay designed a ‘Power Sellers’ endorsement, which purportedly is an award given t0 select eBay dealers based 0n the volume 0f sales and Positive Feedback ratings. [1]] . . . In reality, however, eBay’s ‘safety’ programs have contributed t0 enormous damage t0 autographed sports memorabilia consumers. For example, the Feedback Forum allows anyone t0 rate a dealer, even if there has never been a sales transaction between the parties. Thus, [defendants] have at least hundreds 0f Positive Feedback ratings which are unrelated t0 any sales transactions. Most, if not all, 0f these Positive Feedback ratings are self-generated 0r provided by other co-conspiring dealers. (Gentry, supra, 99 Cal.App.4th at p. 834.) The court explained that “[n]0ne 0f these allegations place eBay outside the immunity for service providers.” (Ibid) 13 KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO As eBay points out, the allegations reveal that eBay’s Feedback Forum is comprised 0f negative 0r positive information provided by third party consumers and dealers. Likewise, the star symbol and “Power Sellers” designation is simply a representation 0f the amount 0f such positive information received by other users 0f eBay’s Web site. Appellants’ negligence claim is based 0n the assertion that the information is false 0r misleading because it has been manipulated by the individual defendants 0r other co-conspiring parties. Based 0n these allegations, enforcing appellants’ negligence claim would place liability on eBay for simply compiling false and/or misleading content created by the individual defendants and other coconspirators. We d0 not see such activities transforming eBay into an information content provider with respect t0 the representations targeted by appellants as it did not create 0r develop the underlying misinformation. (Gentry, supra, 99 Cal.App.4th at p. 834.) While Plaintiffs allege that YouTube’s verification badges are based 0n factors checked by YouTube itself, they provide n0 details t0 distinguish ‘6 this process from eBay’s checks” based 0n user-generated information addressed by Gentry. In sum, all of Plaintiffs’ claims seek t0 hold Defendants liable as the publisher 0f content created by others, and not for Defendants’ own content that “contributes materially t0 the alleged illegality 0f” the scams at issue here. That means that CDA immunity under section 230(c)(1) applies. 3. Criminal conduct Finally, Plaintiffs repeatedly emphasize in their opposition that they are accusing Defendants 0f themselves engaging in criminal conduct “by creating and selling targeted scam ads that they knew were fueling a criminal enterprise with n0 social value 0r free speech protection.” But the “criminal” label that Plaintiffs apply t0 Defendants does not change the analysis above. As noted by Defendants, section 230 does state that it shall not be construed t0 impair the enforcement 0f any federal criminal statute. (§ 230(e)(1).) This action does not seek t0 enforce a federal criminal statute. Section 230 clearly states that “[n]0 cause 0f action may be 14 KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO brought and n0 liability may be imposed under any State 0r local law that is inconsistent with this section.” (§ 230(e)(3).) Yet that what Plaintiffs seek t0 d0 here. 4. Analogousfedeml case Victims 0f a similar cryptocurrency scam carried out through YouTube sued YouTube in 2020 in the Northern District of California, arguing-like Plaintiffs here have done-that YouTube was not immune under section 230(c)(1). (See Ripple Labs Inc. v. YouTube LLC (N.D.Cal. Nov. 20, 2020, N0. 20-CV-02747-LB) 2020 U.S.Dist.LEXIS 218207.) In a well- reasoned order, Magistrate Judge Beeler held that YouTube was entitled t0 CDA immunity, even though it had issued verification badges t0 the scammer’s YouTube channel. (Id. at pp. *16-18.) The Court agrees with Judge Beeler’s analysis, and finds ineffective Plaintiffs’ attempts t0 distinguish the case. 5. Negligence-based claims Plaintiffs argue that their negligence and negligent failure t0 warn claims are not preempted by section 230 0f the CDA, citing Doe v. Internet Brands, Inc. (9th Cir. 2016) 824 F.3d 846 (Internet Brands) and Lemmon v. Snap (9th Cir. May 4, 2021) 995 F.3d 1085, 2021 U.S.App. LEXIS 13 197 (Lemmon). In both 0f those cases, conduct outside 0f content publication/curation caused section 230 immunity not t0 apply. (See Internet Brands, supra, 824 F.3d at p. 851 [service provider allegedly received information separate from content 0f website posting from third party; plaintiff “does not seek t0 hold Internet Brands liable as a ‘publisher 0r speaker’ 0f content,” so CDA immunity does not apply]; Lemmon, supra, 2021 U.S.App. LEXIS 13 197, at p. *3 [plaintiff asserted a product liability claim against defendant; the “duty underlying such a claim differs markedly from the duties 0f publishers as defined in the CDA”].) Here, Plaintiffs seek to hold Defendants liable for their actions (0r lack thereof) concerning contents 0f YouTube’s hosted postings. That means liability depends 0n YouTube’s actions as a publisher, which squarely invokes CDA immunity. The Court accordingly disagrees with Plaintiffs’ argument. 15 KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO V. CONCLUSION The Court finds that the immunity provided by section 230 0f the CDA protects Defendants against all 0f Plaintiffs’ claims. The Court therefore SUSTAINS Defendants’ demurrer based 0n CDA immunity, but gives Plaintiffs LEAVE TO AMEND. Any further amended complaint must be filed within 30 days 0f the date 0f service 0f this order. In light 0f this ruling, the remainder 0f Defendants’ demurrer is moot. IT IS SO ORDERED. Date: The Honorable Sunil R. Kulkarni Judge 0f the Superior Court 16 June 10, 2021