Jane Doe v. Medalist Holdings, Inc. et al

NOTICE OF MOTION AND MOTION to Dismiss Case

C.D. Cal.June 30, 2017

MOTION TO DISMISS 4840-4477-6265v.22 3710078-000083 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DAVIS WRIGHT TREMAINE LLP SCOTT R. COMMERSON (State Bar No. 227460) scottcommerson@dwt.com BRENDAN N. CHARNEY (State Bar No. 293378) brendancharney@dwt.com 865 South Figueroa Street, Suite 2400 Los Angeles, CA 90017-2566 Telephone: (213) 633-6800 DAVIS WRIGHT TREMAINE LLP JAMES GRANT (pro hac vice pending) jamesgrant@dwt.com 1201 Third Avenue, Suite 2200 Seattle, Washington 98101-3045 Telephone: (206)622-3150 DAVIS WRIGHT TREMAINE LLP ROBERT CORN-REVERE (pro hac vice pending) robertcornrevere@dwt.com RONALD LONDON (pro hac vice pending) ronaldlondon@dwt.com 1919 Pennsylvania Avenue, N.W., Suite 800 Washington, D.C. 20006-3401 Telephone: (202) 973-4200 Attorneys for Defendants MEDALIST HOLDINGS, INC.; LEEWARD HOLDINGS, L.L.C.; CAMARILLO HOLDINGS, L.L.C.; DARTMOOR HOLDINGS, L.L.C.; IC HOLDINGS, L.L.C.; BACKPAGE.COM, L.L.C; UGC TECH GROUP C.V.; CARL FERRER; JAMES LARKIN; MICHAEL LACEY; and ATLANTISCHE BEDRIJVEN C.V. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA JANE DOE, individually, by and through her Guardian Ad Litem, S.B., Plaintiff, vs. MEDALIST HOLDINGS, L.L.C.; LEEWARD HOLDINGS, L.L.C.; CAMARILLO HOLDINGS, L.L.C.; DARTMOOR HOLDINGS, L.L.C.; IC HOLDINGS, L.L.C.; BACKPAGE.COM, L.L.C, NEW TIMES MEDIA, L.L.C., UGC TECH GROUP C.V.; CARL FERRER; JAMES LARKIN; MICHAEL LACEY; and, JOHN DOE 1-5, Defendants. Case No. 5:17-cv-1264 MWF (FFMx) Assigned to the Honorable Michael W. Fitzgerald (Courtroom 5A) MOTION TO DISMISS Date: August 21, 2017 Time: 10:00 a.m. Location: Courtroom 5A Action Filed: January 25, 2017 Case 5:17-cv-01264-MWF-FFM Document 18 Filed 06/30/17 Page 1 of 36 Page ID #:407 i MOTION TO DISMISS 4840-4477-6265v.22 3710078-000083 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DAVIS WRIGHT TREMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 Fax: (213) 633-6899 TABLE OF CONTENTS Page I. INTRODUCTION .......................................................................................... 1 II. BACKGROUND ............................................................................................ 2 A. Backpage.com....................................................................................... 2 B. The First Amended Complaint. ............................................................ 5 III. STANDARD OF REVIEW ............................................................................ 8 IV. ARGUMENT .................................................................................................. 9 A. SECTION 230 BARS ALL OF PLAINTIFF'S CLAIMS.................... 9 1. Section 230 Was Designed to Promote Free Speech Online. ........................................................................................ 9 2. Plaintiff’s Claims are Barred Under Section 230’s Three-Part Test. ........................................................................ 10 3. Plaintiff Cannot Evade Section 230 Through Artful Pleading. ................................................................................... 11 a. Backpage’s Editorial Choices Are Protected by Section 230. ................................................................................. 11 b. Notice Liability Cannot Defeat Section 230. ................. 15 c. Conclusory Allegations of Conspiracy Cannot Overcome Section 230. ................................................................... 17 B. Plaintiff Also Fails to State a Claim on Her Various Causes of Action. ................................................................................................ 20 1. The Negligence and Assault-and-Battery Claims Both Fail. .................................................................................. 20 2. The Intentional Infliction of Emotional Distress Claim Fails. .............................................................................. 22 3. The Invasion of Privacy Claim Fails. ....................................... 23 4. The Conspiracy Claim Fails. .................................................... 24 5. The Unjust Enrichment Claim Fails......................................... 25 V. CONCLUSION ............................................................................................. 25 Case 5:17-cv-01264-MWF-FFM Document 18 Filed 06/30/17 Page 2 of 36 Page ID #:408 ii MOTION TO DISMISS 4840-4477-6265v.22 3710078-000083 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DAVIS WRIGHT TREMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 Fax: (213) 633-6899 TABLE OF AUTHORITIES Page(s) Cases American Income Life Ins. Co. v. Google, Inc., 2014 WL 4452679 (N.D. Ala. Sept. 8, 2014) ........................................................ 10 Applied Equip. Corp. v. Litton Saudi Arabia Ltd., 7 Cal. 4th 503 (1994) ....................................................................................... 24, 25 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ................................................................................................. 8 Backpage.com, LLC v. Cooper, 939 F. Supp. 2d 805 (M.D. Tenn. 2013) ......................................................... passim Backpage.com, LLC v. Dart, 807 F.3d 229 (7th Cir. 2015) ............................................................................. 3, 16 Backpage.com, LLC v. Hoffman, 2013 WL 4502097 (D. N.J. Aug. 20, 2013) .......................................................... 10 Backpage.com, LLC v. McKenna, 881 F. Supp. 2d 1262 (W.D. Wash. July 27, 2012) ................................. 3, 5, 10, 16 Barrett v. Rosenthal, 40 Cal. 4th 33 (2006) ....................................................................................... 10, 17 Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003) ........................................................................... 9, 19 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ........................................................................................... 8, 19 Buckey v. County of Los Angeles, 968 F.2d 791 (9th Cir. 1992) ................................................................................. 19 Caraccioli v. Facebook, Inc., 2017 WL 2445063 (9th Cir. 2017) .................................................................. 14, 17 Carafano v. Metrosplash.com, 339 F.3d 1119 (9th Cir. 2003) ............................................................................... 19 Case 5:17-cv-01264-MWF-FFM Document 18 Filed 06/30/17 Page 3 of 36 Page ID #:409 iii MOTION TO DISMISS 4840-4477-6265v.22 3710078-000083 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DAVIS WRIGHT TREMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 Fax: (213) 633-6899 Christensen v. Superior Court, 54 Cal. 3d 868 (1991) ............................................................................................ 22 Cohen v. Facebook, Inc., 2017 WL 2192621 (E.D.N.Y. May 18, 2017) ....................................................... 11 Conti v. Watchtower Bible & Tract Soc’y of N.Y., Inc., 235 Cal. App. 4th 1214 (2015) ........................................................................ 20, 21 Davis v. Motiva Enterprises, L.L.C., 2015 WL 1535694 (Tex. App. Beaumont Apr. 2, 2015) ....................................... 19 Doe v. AOL, 783 So.2d 1010 (Fla. 2001) .................................................................................... 18 Doe No. 1 v. Backpage.com, LLC 104 F. Supp. 3d 149 (D. Mass. 2015) .................................................................... 10 Doe No. 1 v. Backpage.com, LLC 817 F.3d 12 (1st Cir. 2016) ............................................................................. passim Doe v. Bates, 2006 WL 3813758 (E.D. Tex. Dec. 27, 2006) ............................................. 2, 16, 19 Doe v. GTE Corp., 347 F.3d 655 (7th Cir. 2003) ................................................................................. 16 Doe v. MySpace, 528 F.3d 413 (5th Cir. 2008) ................................................................................. 15 Doe II v. MySpace Inc., 175 Cal. App. 4th 561 (2009) ................................................................................ 15 Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008) ................................................................... 10, 11, 18 GoDaddy.com, LLC v. Toups, 429 S.W.3d 752 (Tex. App. Beaumont Apr. 10, 2014) ................................... 14, 16 Google v. Hood, 822 F.3d 212 (5th Cir. 2016) ................................................................................... 2 Green v. AOL, 318 F.3d 465 (3d Cir. 2003) ................................................................................... 15 Case 5:17-cv-01264-MWF-FFM Document 18 Filed 06/30/17 Page 4 of 36 Page ID #:410 iv MOTION TO DISMISS 4840-4477-6265v.22 3710078-000083 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DAVIS WRIGHT TREMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 Fax: (213) 633-6899 Jones v. Dirty World Entm’t Recordings LLC, 755 F.3d 398 (6th Cir. 2014) ................................................................. 8, 10, 11, 17 Kenne v. Stennis, 230 Cal. App. 4th 953 (2014) ................................................................................ 24 Kimzey v. Yelp! Inc., 836 F.3d 1263 (9th Cir. 2016) ........................................................................... 2, 12 Knievel v. ESPN, 393 F.3d 1068 (9th Cir. 2005) ................................................................................. 3 Koepke v. Loo, 18 Cal. App. 4th 1444 (1993) ................................................................................ 21 M.A. v. Village Voice Media Holdings, LLC, 809 F. Supp. 2d 1041 (E.D. Mo. 2011) .......................................................... passim Melchior v. New Line Prods., Inc., 106 Cal. App. 4th 779 (2003) ................................................................................ 25 Moreno v. Hanford Sentinel, Inc., 172 Cal. App. 4th 1125 (2009) .............................................................................. 23 Murphy v. Cadillac Rubber & Plastics, Inc., 946 F. Supp. 1108 (W.D.N.Y.1996) ........................................................................ 6 Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250 (4th Cir. 2009) ............................................................................. 8, 25 Nugget Hydroelectric, L.P. v. Pac. Gas & Elec. Co., 981 F.2d 429 (9th Cir. 1992) ................................................................................... 3 People v. Ferrer, 2016 WL 7237305 (Cal. Super. Ct., Dec. 9, 2016) ............................... 9, 10, 15, 18 Perkins v. Silverstein, 939 F.2d 463 (7th Cir. 1991) ................................................................................... 7 Peters v. LifeLock Inc., 2014 WL 12544495 (D. Ariz. Sept. 19, 2014) ...................................................... 10 Sell v. Zions First Nation Bank, 2006 WL 322469 (D. Ariz. Feb. 9, 2006) .......................................................... 7, 10 Case 5:17-cv-01264-MWF-FFM Document 18 Filed 06/30/17 Page 5 of 36 Page ID #:411 v MOTION TO DISMISS 4840-4477-6265v.22 3710078-000083 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DAVIS WRIGHT TREMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 Fax: (213) 633-6899 Shulman v. Grp. W Prods., Inc., 18 Cal. 4th 200 (1998) ........................................................................................... 23 State of Cal.ex rel. Metz v. CCC Info. Svcs., Inc., 149 Cal. App. 4th 402 (2007) ................................................................................ 24 United States v. Ackerman, 831 F.3d 1292 (10th Cir. 2016) ............................................................................... 5 Universal Commc’n Sys., Inc. v. Lycos, Inc., 478 F.3d 413 (1st Cir. 2007) ........................................................................ 9, 10, 16 Van Buskirk v. Cable News Network, Inc., 284 F.3d 977 (9th Cir. 2002) ................................................................................... 3 Woodrum v. Woodward County, 866 F.2d 1121 (9th Cir. 1989) ............................................................................... 19 Worldwide, LLC v. Google, Inc., 2017 U.S. Dist. LEXIS 88650 (M.D. Fla. Feb. 8, 2017) ......................................... 9 Zelig v. County of Los Angeles 27 Cal.4th 1112 (2002) .......................................................................................... 20 Zeran v. Am. Online, Inc., 129 F.3d 327 (4th Cir. 1997) ..................................................................... 10, 16, 17 Statutes 47 U.S.C. § 230 ................................................................................................................ passim § 230(c)(1) ....................................................................................................... passim § 230(e)(3) .............................................................................................................. 10 Rules Federal Rules of Civil Procedure 10(c) ..................................................................................................................... 6, 7 12(b)(6) .................................................................................................................... 8 Federal Rules of Evidence 201 ..................................................................................... 3 Constitutional Provisions United States Constitution, amendment I ................................................................. 1, 9 Case 5:17-cv-01264-MWF-FFM Document 18 Filed 06/30/17 Page 6 of 36 Page ID #:412 1 MOTION TO DISMISS 4840-4477-6265v.22 3710078-000083 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DAVIS WRIGHT TREMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 Fax: (213) 633-6899 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on August 21, 2017, at 10:00 a.m., in Courtroom 5A of the United States District Court for the Central District of California, located at 350 West First Street, Los Angeles, CA 90012, Defendants Medalist Holdings, Inc.; Leeward Holdings, L.L.C.; Camarillo Holdings, L.L.C.; Dartmoor Holdings, L.L.C.; IC Holdings, L.L.C.; Backpage.com, L.L.C.; UGC Tech Group C.V.; Atlantische Bedrijven C.V.; Carl Ferrer; James Larkin; and Michael Lacey (collectively, “Backpage”) will and hereby do move to dismiss with prejudice the First Amended Complaint, as amended (“FAC”). This Motion is made pursuant to Federal Rule of Civil Procedure 12(b)(6) because Plaintiff’s purported causes of action for negligence, intentional infliction of emotional distress, assault and battery, unjust enrichment, invasion of privacy, and civil conspiracy fail to state a claim for which relief can be granted. Section 230 of the Communications Decency Act provides Backpage with complete immunity against liability arising from content created by website users and posted to Backpage.com. 47 U.S.C. § 230 (“Section 230”), barring all claims. Because all of Plaintiff’s claims arise from third-party postings, the claims should be dismissed with prejudice. In addition, even if Section 230 did not bar this action in its entirety (it does), Plaintiff has also failed to state a claim under settled principles of California law. This Motion is made following the conference between counsel for Backpage and counsel for Plaintiff pursuant to L.R. 7-3, which commenced on June 23, 2017, and completed on June 28, 2017. / / / / / / / / / / / / / / / Case 5:17-cv-01264-MWF-FFM Document 18 Filed 06/30/17 Page 7 of 36 Page ID #:413 2 MOTION TO DISMISS 4840-4477-6265v.22 3710078-000083 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DAVIS WRIGHT TREMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 Fax: (213) 633-6899 This Motion is based on the Notice Of Motion, the attached Memorandum Of Points And Authorities; all other matters of which this Court may take judicial notice, the pleadings, files, and records in this action, and on such other argument as may be heard by this Court. DATED: June 30, 2017 DAVIS WRIGHT TREMAINE LLP SCOTT R. COMMERSON BRENDAN N. CHARNEY JAMES GRANT ROBERT CORN-REVERE RONALD LONDON By: s/Scott R. Commerson Scott R. Commerson Attorneys for Defendants Attorneys for Defendants MEDALIST HOLDINGS, INC.; LEEWARD HOLDINGS, L.L.C.; CAMARILLO HOLDINGS, L.L.C.; DARTMOOR HOLDINGS, L.L.C.; IC HOLDINGS, L.L.C.; BACKPAGE.COM, L.L.C; UGC TECH GROUP C.V.; CARL FERRER; JAMES LARKIN; MICHAEL LACEY; and ATLANTISCHE BEDRIJVEN C.V. Case 5:17-cv-01264-MWF-FFM Document 18 Filed 06/30/17 Page 8 of 36 Page ID #:414 1 MOTION TO DISMISS 4840-4477-6265v.22 3710078-000083 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DAVIS WRIGHT TREMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 Fax: (213) 633-6899 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiff was victimized by a pimp named Reson Tredon Richard, who in- volved her in sex trafficking and allegedly posted her pictures on the classified advertising website Backpage.com. But even though the complaint1 repeatedly acknowledges that advertisements on Backpage.com are created by users and it was Richard who created any advertisements concerning her, the Plaintiff seeks to blame the website, its CEO, and its former owners (collectively, “Backpage”) for Richard’s criminal activity. This attempt to hold Backpage liable for a user’s posting flies in the face of scores of contrary decisions—including cases involving the same Backpage defendants sued here—holding that online publishing activities are pro- tected by the First Amendment and immunized from liability by Section 230 of the Communications Decency Act (“CDA”), 47 U.S.C. § 230 (“Section 230”). Courts have dismissed virtually identical lawsuits against Backpage based on Section 230’s command that “[n]o provider … of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” In M.A. v. Village Voice Media Holdings, LLC, 809 F. Supp. 2d 1041, 1053-54 (E.D. Mo. 2011), the court dismissed claims alleging Backpage.com’s structure and operation, and its editorial functions and alleged knowledge of illegal activity, made it culpable for sex trafficking. More recently, Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12, 22 (1st Cir. 2016), cert. denied, 137 S. Ct. 622 (2017), held Backpage’s editorial choices were immunized—despite similarly inflammatory allegations that its policies sought to promote “illicit sex trade” and “trafficking of children”—because its practices “[s]ingly or in the aggregate … amount to neither affirmative participation in an illegal venture nor 1 The operative complaint in this action is the First Amended Complaint, as amended (ECF No. 1-1, Exhibit F) (“FAC”) Case 5:17-cv-01264-MWF-FFM Document 18 Filed 06/30/17 Page 9 of 36 Page ID #:415 2 MOTION TO DISMISS 4840-4477-6265v.22 3710078-000083 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DAVIS WRIGHT TREMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 Fax: (213) 633-6899 active web content creation.” Id. at 157. Plaintiff tries to circumvent Section 230 by peppering the FAC with conclusory assertions that Backpage somehow “conspired” with those who purchased ads on its site, or in some way “helped” third party users create content via editorial practices. But the FAC’s factual allegations admit the ads concerning Plaintiff were all conceived, created, and posted entirely by Richard. See FAC ¶¶ 2.21, 4.4, 4.6. And the practices alleged to make Backpage a “conspir[ator],” “facilitat[or],” or “help[er]” of traffickers are all publishing prerogatives that courts uniformly have deemed editorial policies immunized by applicable law. Such “artful” pleading can- not “skirt[]” Section 230. Kimzey v. Yelp! Inc., 836 F.3d 1263, 1266 (9th Cir. 2016). Backpage by no means minimizes the grievous harms Plaintiff suffered. But “[w]hile the facts of a … case such as this one may be highly offensive, Congress has decided that the parties to be punished and deterred are not the internet service providers but rather are those who created and posted the illegal material,” Doe v. Bates, 2006 WL 3813758, at *4 (E.D. Tex. Dec. 27, 2006), so as not to cripple the Internet by allowing liability for online hosts of third-party-created content. Thus, in applying Section 230, courts consistently recognize “the importance of preserving free speech on the internet, even though [it] serves as a conduit for much that is distasteful or unlawful.” Google v. Hood, 822 F.3d 212, 220 (5th Cir. 2016). In accord with those policy judgments, this case should be dismissed. In addition, even if Section 230 did not bar this action in its entirety, Plaintiff has failed to state a claim under California law. II. BACKGROUND A. Backpage.com Defendants are all alleged owners or operators of, or otherwise associated with, Backpage.com, an online classified advertising service through which users can post ads in a variety of categories, including local places, buy/sell/trade, automotive, rentals, real estate, jobs, dating, and services. See Backpage.com, LLC v. Cooper, Case 5:17-cv-01264-MWF-FFM Document 18 Filed 06/30/17 Page 10 of 36 Page ID #:416 3 MOTION TO DISMISS 4840-4477-6265v.22 3710078-000083 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DAVIS WRIGHT TREMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 Fax: (213) 633-6899 939 F. Supp. 2d 805, 813 (M.D. Tenn. 2013).2 The site is organized geographically, by state and municipality. See http://inlandempire.backpage.com/; see also FAC ¶¶ 3.8, 3.42, 4.5. Users post millions of ads on Backpage.com every month, making it the second-largest online classified ad service in the country, after Craigslist. See McKenna, 881 F. Supp. 2d at 1266. Users provide all content for ads they post, using an automated interface; Backpage.com does not dictate or require any content. Cooper, 939 F. Supp. 2d at 813 (“The website works by allowing users to post their own advertisements[.]”). Until January 2017, Backpage also included among various others (e.g., buy/sell/trade, real estate, jobs, etc.,) a category for “adult” services, which—following years of pressure from government actors, including a campaign that the Seventh Circuit described as an unconstitutional effort to “crush Backpage”—has now been shuttered. Backpage.com, LLC v. Dart, 807 F.3d 229, 230 (7th Cir. 2015), cert. denied, 137 S. Ct. 46, 196 L. Ed. 2d 28 (2016).3 To prevent improper ads or misuse of the site, Backpage.com has terms and rules for posting ads. Users must affirmatively accept the Terms of Use to post ads in any category on the website. Cooper, 939 F. Supp. 2d at 813-14. The Terms of Use expressly prohibit the posting or viewing of any adult content or explicit material by anyone under 18 years of age. Id.; Backpage.com Terms of Use (“Terms of Use”) ¶ 4(a)(ii), available at http://inlandempire.backpage.com/classifieds/TermsOfUse. 2 As Plaintiff references the Backpage.com website and makes allegations concerning its purported content throughout the FAC (see, e.g., id. ¶¶ 1.1, 3.4, 3.8, 3.15, 3.16), the Court may consider it in deciding this motion. Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002) (“Under the ‘incorporation by reference’ rule …, a court may look beyond the pleadings” to “documents … referenced extensively in the complaint and … accepted by all parties as authentic” in deciding a 12(b)(6) motion); Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005) (noting incorporation-by-reference rule “applies with equal force to internet pages as it does to printed material”) The Court may also take judicial notice of court decisions about the site and similar claims. Fed R. Evid. 201; see, e.g., Nugget Hydroelectric, L.P. v. Pac. Gas & Elec. Co., 981 F.2d 429, 435 (9th Cir. 1992). 3 See http://www.backpage.com/classifieds/Media. See also Backpage.com Succumbing to Government Is Blow to Free Speech Online, Jan. 10, 2017, Ctr. for Democracy & Technology, https://cdt.org/press/backpage-com-succumbing-to- government-is-blow-to-free-speech-online. Case 5:17-cv-01264-MWF-FFM Document 18 Filed 06/30/17 Page 11 of 36 Page ID #:417 4 MOTION TO DISMISS 4840-4477-6265v.22 3710078-000083 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DAVIS WRIGHT TREMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 Fax: (213) 633-6899 The Terms of Use prohibit advertising illegal activities and nude or lewd photos. See Terms of Use ¶¶ 4(b), 5. In particular, they specifically forbid: “[p]osting any solici- tation directly or in ‘coded’ fashion for any illegal service exchanging sexual favors for money or other valuable consideration,” (id. ¶ 4(c)); “[p]osting any material on the Site that exploits minors in any way” (id. ¶ 4(d)); “[p]osting any material on the Site that in any way constitutes or assists in human trafficking” (id. ¶ 4(e)); and posting any ad for products or services, use or sale of which is prohibited by any law or regulation” (id. ¶ 5). Users are directed to “report any violations of these Terms to: abuse@backpage.com.” Id. ¶ 18. See also Cooper, 939 F. Supp. 2d at 814. When a user attempts to post an ad in the Backpage.com dating section (or, while it was active, the adult section), the following highlighted notice appears: Posting Rules You agree to the following when posting in this category:  I will not post obscene or lewd and lascivious graphics or photographs which depict genitalia, actual or simulated sexual acts or naked images;  I will not post any solicitation directly or in "coded" fashion for any illegal service, including exchanging sexual favors for money or other valuable consideration;  I will not post any material on the Site that exploits minors in any way;  I will not post any material on the Site that in any way constitutes or assists in human trafficking;  I am at least 18 years of age or older and not considered to be a minor in my state of residence. Any post exploiting a minor in any way will be subject to criminal prosecution and will be reported to the Cybertipline for law enforcement. Postings violating these rules and our Terms of Use are subject to removal without refund.4 The “Cybertipline”—included as a hypertext link in the above warning—is an online tool operated by the National Center for Missing and Exploited Children 4 http://posting.inlandempire.backpage.com/online/classifieds/PostAdPPI.html/emp/i nlandempire.backpage.com/?serverName=inlandempire.backpage.com&superRegion =Inland%20Empire&u=emp§ion=4383&category=4454 Case 5:17-cv-01264-MWF-FFM Document 18 Filed 06/30/17 Page 12 of 36 Page ID #:418 5 MOTION TO DISMISS 4840-4477-6265v.22 3710078-000083 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DAVIS WRIGHT TREMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 Fax: (213) 633-6899 (“NCMEC”), which helps law enforcement locate and rescue missing and exploited children. United States v. Ackerman, 831 F.3d 1292, 1294 (10th Cir. 2016). The site also contains numerous hyperlinks to a “User Safety” page with links to NCMEC and similar resources. Backpage.com, LLC v. McKenna, 881 F. Supp. 2d 1262, 1266 (W.D. Wash. July 27, 2012). Every ad contains a “Report Ad” button, and Back- page.com has an email address (abuse@backpage.com) for users to identify ads they believe improper or suspect. See Cooper, 939 F. Supp. 2d at 814. Backpage takes other measures to police user posts. See FAC ¶¶ 3.13-3.14, 3.22 (alluding to screening). “In addition to user reports, Backpage.com monitors … ads through automated and manual reviews.” Cooper, 939 F. Supp. 2d at 814. Through this screening, Backpage blocks and removes posts and refers ads that may involve child exploitation to NCMEC. See McKenna, 881 F. Supp. 2d at 1266-67; Cooper, 939 F. Supp. 2d at 814. “Backpage.com also regularly works with local, state, and federal law enforcement officials by responding to subpoena requests, providing officials with Internet search tools, and removing posts and blocking users at the request of officials.” Cooper, 939 F. Supp. 2d at 814. B. The First Amended Complaint. Plaintiff alleges six causes of action against Richard and Backpage: negligence, intentional infliction of emotional distress, assault and battery, unjust enrichment, invasion of privacy, and civil conspiracy, with the negligence and invasion of privacy claims are alleged against only Backpage. Plaintiff—who alleges she was victimized by a trafficker who created and posted ads selling her for sex on Backpage.com—seeks to hold Backpage.com and its principals liable for advertising created and submitted by that third-party trafficker. FAC ¶¶ 2.21, 4.1 - 4.6. In particular, she alleges she “was repeatedly advertised for sex in the ‘escort’ section of www.backpage.com … by defendant Reson Tredon Richard.” Id. ¶¶ 4.1-4.2 (emphasis added). She further alleges “Richard sold [her] for sex through ads on www.backpage.com in Riverside County, California, and Los Angeles County, Case 5:17-cv-01264-MWF-FFM Document 18 Filed 06/30/17 Page 13 of 36 Page ID #:419 6 MOTION TO DISMISS 4840-4477-6265v.22 3710078-000083 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DAVIS WRIGHT TREMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 Fax: (213) 633-6899 California.” Id. ¶¶ 4.5. As a result of the ads created and posted by Richard, the FAC alleges, “Doe was repeatedly sexually abused and exploited by men who purchased her for sex by paying … Richard after he advertised her for sex on www.backpage.com.” Id. ¶¶ 4.11 (emphasis added). Plaintiff claims Backpage supposedly did not “take any steps to prevent [her] from being advertised for sex on www.backpage.com”, id. ¶¶ 4.8-4.9, but does not allege Backpage had any special relationship with or owed any duty to her. Apart from conclusory allegations that Backpage “owned, operated, designed and/or controlled the website, including its content,” id. ¶¶ 2.5-2.16, that it “edit[ed]” advertisements on the website in accordance with its posting rules, id. ¶ 3.21, and that it somehow “assist[ed] sex traffickers in creating and developing the content of those ads,” id. ¶ 5.7, Plaintiff does not allege that Backpage created or developed the content of ads at www.backpage.com or — even more importantly — created or developed the particular ads that allegedly resulted in Plaintiff’s victimization.5 Rather, Plaintiff’s allegations rely on Backpage’s general exercise of editorial functions in operating a website available to millions of users. Attempting to hold it liable for its users’ conduct, the FAC asserts Backpage “encouraged and helped sex traffickers to create and develop their sex ads” by, paradoxically, prohibiting and removing content that might indicate the sale of sex. See id. ¶ 1.1. And it is replete with conclusory allegations that Backpage “helps” unspecified “sex traffickers” in the aggregate to “avoid detection” by law enforcement.6 See, e.g., FAC ¶¶ 3.13-3.14. 5 The FAC also makes the conclusory assertion that Backpage “intentionally developed their website to require information that promoted this illegal trade”, id. at 3.12, but does not explain what “information” was supposedly “required” or how this information would “promote” any “illegal trade.” 6 These and related allegations that Backpage “knowingly” “helped” sex traffickers by operating a website, see, e.g., FAC ¶ 1.1, apparently rely on a Senate Report attached to the FAC as Appendix A, FAC ¶ 2.17. The Report, however, is a polemic replete with argument, inadmissible hearsay, and conjecture, and is not properly incorporated into the FAC. Under Fed. R. Civ. Pro. 10(c), pleadings may incorporate only “written instruments” i.e., “a document evidencing legal rights or duties or giving formal expression to a legal act or agreement, such as a deed, will, bond, lease, insurance policy or security agreement.” Murphy v. Cadillac Rubber & Case 5:17-cv-01264-MWF-FFM Document 18 Filed 06/30/17 Page 14 of 36 Page ID #:420 7 MOTION TO DISMISS 4840-4477-6265v.22 3710078-000083 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DAVIS WRIGHT TREMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 Fax: (213) 633-6899 These allegations amount to nothing more than jaundiced characterization of Backpage’s use of posting rules, moderation, and automatic filtering to prohibit and remove objectionable content. See, e.g., FAC ¶¶ 3.15, 3.21-3.25. Moreover, they underscore that ads on Backpage.com are conceived, created, and posted by third party users. See, e.g., id. ¶ 3.13 (“sex traffickers create and develop sex trafficking ads on www.backpage.com”) (emphasis added); ¶ 3.24 (“when a user posted an ad with certain words that directly or indirectly indicated the ad was for sex, the website would remove the offending language”) (emphasis added). The FAC draws on these characterizations of Backpage.com’s general editorial practices to allege that “Richard paid the Backpage.com defendants a fee in order to advertise [Plaintiff] for sex on www.backpage.com” and “in exchange for the fee, the Backpage.com defendants ‘moderated’ each ad of [Plaintiff] to make it less obvious that the ads were for sex.” Id. ¶¶ 4.6-4.7. Apart from the allegation that Backpage generally removes offending content, id. ¶¶ 3.20, 3.22, 3.24, 3.25, there is no specific factual averment concerning how Backpage “moderated” particular ads concerning Plaintiff. See, generally, FAC; cf. id. ¶ 4.7 (conclusory allegation that Backpage “‘moderated’ each ad of Jane Doe”). Indeed, the FAC makes clear that moderation and screening functions were applied as part of a systematic anti-abuse policy applicable to all users, not specific to Richard. See, e.g, id. ¶¶ 3.15, 3.22, 3.24 (allegations of “automatic” ‘moderation’” through which “the website would remove the offending language and then post the remainder of the ad”). Plastics, Inc., 946 F. Supp. 1108, 1115 (W.D.N.Y.1996) (“supporting statements” in affidavit, affirmations, and letter were not “written instruments”). The Senate Report—which does not give rise to any legal rights or duties among the parties—is exactly the sort of extrinsic document that courts refuse to treat as incorporated into a complaint. See, e.g., Sell v. Zions First Nation Bank, 2006 WL 322469, at *5 (D. Ariz. Feb. 9, 2006) (report by court-appointed receiver containing information that “expanded” on pleadings is not a “written instrument” because it “does not evidence any legal rights or duties, nor does it give formal expression to a legal act or agreement”); Perkins v. Silverstein, 939 F.2d 463, 467 (7th Cir. 1991) (articles and commentary “are not the type of documentary evidence or ‘written instrument[s]’ which Fed. R. Civ. P. 10(c) intended to be incorporated). Case 5:17-cv-01264-MWF-FFM Document 18 Filed 06/30/17 Page 15 of 36 Page ID #:421 8 MOTION TO DISMISS 4840-4477-6265v.22 3710078-000083 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DAVIS WRIGHT TREMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 Fax: (213) 633-6899 The FAC alleges Backpage somehow knew Richard “was a sex trafficker who was selling women and children for sex” and “made no effort to prevent him” from doing so. Id. ¶ 4.9. No factual support is offered for this allegation. Instead, the assertion of knowledge is based on allegations that (i) Backpage.com screens objectionable content, id. ¶¶ 3.20, 3.22, 3.24; and (ii) because the adult section included ads that referred to “escorts”, id. ¶ 3.10, and Backpage allegedly “knew that in the world of illicit human sex trafficking, ‘escort’ is another word for prostitute”, id. ¶ 3.11, it somehow “knew that 99.9% of the ads in the ‘escort’ section were sex ads” involving “a prostitute”, id. ¶ 3.16. Based on this chain of conjecture, the FAC claims Backpage “knowingly allow[ed] sex traffickers to advertise children for sex on their website, including [Plaintiff]”. Id. ¶ 5.7. III. STANDARD OF REVIEW Under Rule 12(b)(6), “a complaint must contain 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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “The plausibility standard “requires more than ‘a sheer possibility that a defendant has acted unlawfully’; and is met only when the plaintiff pleads facts that allow the court to “draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citation and internal quotation marks omitted). Further, Section 230 immunity should be resolved at the earliest phase of liti- gation because it provides “immunity from suit rather than a mere defense to liability and it is effectively lost” if a case is improperly allowed to proceed. Nemet Chevro- let, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 254 (4th Cir. 2009) (quotation marks and citation omitted); accord Jones v. Dirty World Entm’t Recordings LLC, 755 F.3d 398, 417 (6th Cir. 2014) (Section 230 “immunity…should be resolved at an earlier stage of litigation” given the law’s purpose to protect “an open and robust internet”). Numerous decisions have granted or affirmed such dismissals of suits that, like this one, seek to hold websites liable for hosting content created by third Case 5:17-cv-01264-MWF-FFM Document 18 Filed 06/30/17 Page 16 of 36 Page ID #:422 9 MOTION TO DISMISS 4840-4477-6265v.22 3710078-000083 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DAVIS WRIGHT TREMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 Fax: (213) 633-6899 parties, see, e.g., Doe No. 1, 817 F.3d 12; Universal Commc’n Sys., Inc. v. Lycos, Inc., 478 F.3d 413 (1st Cir. 2007), and this Court should do the same. Further, even beyond Section 230’s preclusive effect, Plaintiff has not alleged sufficient facts to plausibly state a claim under any of the FAC’s six purported causes of action. IV. ARGUMENT A. SECTION 230 BARS ALL OF PLAINTIFF'S CLAIMS. 1. Section 230 Was Designed to Promote Free Speech Online. Section 230 is a statutory embodiment of First Amendment principles for online speech,7 designed “to encourage the unfettered and unregulated development of free speech on the Internet,” Batzel v. Smith, 333 F.3d 1018, 1027 (9th Cir. 2003), “to promote the development of e-commerce,” id., and to encourage online providers to “self-police” for potentially harmful or offensive material by providing immunity for doing so, id. at 1028. Congress sought to eliminate the “‘obvious chilling effect’” that imposing liability on online providers would cause, “‘given the volume of material communicated through [the Internet], the difficulty of separating lawful from unlawful speech, and the relative lack of incentives to protect lawful speech.’” Lycos, 478 F.3d at 418-19 (citation omitted). “[T]he protections afforded by the First Amendment were the motivating factors behind” Section 230. People v. Ferrer, 2016 WL 7237305, at *3 (Cal. Super. Ct., Dec. 9, 2016); Batzel, 333 F.3d at 1028. To safeguard these important values, Section 230(c)(1) mandates that “[n]o provider … of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 7 Because Section 230 immunity implements First Amendment principles, efforts to impose liability on editorial choices by online intermediaries may be barred even where the technical statutory requirements are not met. See, e.g., e-ventures Worldwide, LLC v. Google, Inc., 2017 U.S. Dist. LEXIS 88650, *11 (M.D. Fla. Feb. 8, 2017) (“Google’s actions in formulating rankings for its search engine and in determining whether certain websites are contrary to Google’s guidelines and thereby subject to removal are the same as decisions by a newspaper editor regarding which content to publish, which article belongs on the front page, and which article is unworthy of publication. The First Amendment protects these decisions, whether they are fair or unfair, or motivated by profit or altruism.”). Case 5:17-cv-01264-MWF-FFM Document 18 Filed 06/30/17 Page 17 of 36 Page ID #:423 10 MOTION TO DISMISS 4840-4477-6265v.22 3710078-000083 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DAVIS WRIGHT TREMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 Fax: (213) 633-6899 47 U.S.C. § 230(c)(1). Thus, the “plain language” of Section 230 “creates a federal immunity to any cause of action that would make service providers liable for infor- mation originating with a third-party user.” Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997). Additionally, Section 230(e)(3) expressly preempts all civil claims and all state-law claims, whether civil or criminal, barring any state-law claims against an online publisher such as Backpage.com (and the other Defendants) based on third-party content it publishes. Barrett v. Rosenthal, 40 Cal. 4th 33, 39 (2006); Peters v. LifeLock Inc., 2014 WL 12544495, at *3 (D. Ariz. Sept. 19, 2014). 2. Plaintiff’s Claims are Barred Under Section 230’s Three-Part Test. Section 230 immunity applies expansively, Lycos, 478 F.3d at 419, and “close cases ... must be resolved in favor of immunity”, Jones, 755 F.3d at 408 (quoting Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1174 (9th Cir. 2008) (en banc)). Immunity must be granted where “(1) [the defendant] is a provider or user of an interactive computer service, (2) the claim is based on information provided by another information content provider; and (3) the claim would treat [the defendant] as the publisher or speaker of that information.” Doe No. 1, 817 F.3d at 19 (quoting Lycos, 478 F.3d at 418); accord American Income Life Ins. Co. v. Google, Inc., 2014 WL 4452679, *7 (N.D. Ala. Sept. 8, 2014). Applying this test, at least six courts have held Backpage is immunized under Section 230. Doe No. 1, 104 F. Supp. 3d at 157-58, aff’d, 817 F.3d at 20-22; Backpage.com, LLC v. Hoffman, 2013 WL 4502097, *8 (D. N.J. Aug. 20, 2013); Cooper, 939 F. Supp. 2d at 823-25; McKenna, 881 F. Supp. 2d at 1271-75; M.A., 809 F. Supp. 2d at 1050-54; People v. Ferrer, 2016 WL 7237305. The same conclusion controls here. First, “Backpage.com is the quintessential publisher contemplated by the CDA.” Cooper, 939 F. Supp. 2d at 823; see also People v. Ferrer, 2016 WL 7237305, at *6. Second, Plaintiff bases her claims on advertising about her that she alleges a third-party trafficker created from photo- graphs he “took” of Plaintiff and “posted” on Backpage.com. See FAC ¶¶ 2.21. Or, Case 5:17-cv-01264-MWF-FFM Document 18 Filed 06/30/17 Page 18 of 36 Page ID #:424 11 MOTION TO DISMISS 4840-4477-6265v.22 3710078-000083 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DAVIS WRIGHT TREMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 Fax: (213) 633-6899 as Plaintiff more succinctly put it, she “was advertised for sex on www.backpage.com by defendant Reson Tredon Richard.” Id. ¶ 4.2 (emphasis added). See also id. ¶ 4.5 (“Richard sold [Plaintiff] for sex through ads on www.backpage.com”). Such postings are the essence of “information provided by another content provider,” as contemplated in Section 230. See, e.g., Doe No. 1, 817 F.3d at 17-21; M.A., 809 F. Supp. 2d at 1050-53. Third, Plaintiff’s claims treat Backpage.com “as the publisher or speaker” of the ad, as they take Backpage to task for, essentially, decisions about “whether to publish, withdraw, postpone or alter content,” traditional editorial functions that Section 230 protects. Jones, 755 F.3d at 407 (citation omitted). “In keeping with this expansive view of the publisher’s role, judicial decisions in this area consistently stress that decisions as to whether existing content should be removed from a website fall within the editorial prerogative.” Cohen v. Facebook, Inc., 2017 WL 2192621 at *11 (E.D.N.Y. May 18, 2017) (Section 230 barred attempt to hold Facebook.com liable for “‘provision of services’ to Hamas…‘coupled with Facbook’s refusal to use available resources … to identify and shut down Hamas accounts.’”); Roommates.com, 521 F.3d at 1170-71 (“[A]ny activity that can be boiled down to deciding whether to exclude material that third parties seek to post online is perforce immune under section 230.”). Plaintiff’s artful pleadings cannot circumvent Section 230’s well-established immunity.8 3. Plaintiff Cannot Evade Section 230 Through Artful Pleading. a. Backpage’s Editorial Choices Are Protected by Section 230. Plaintiff cannot evade Section 230 by characterizing Backpage.com as “encouraging and helping sex traffickers create and develop sex trafficking ads.” E.g., FAC ¶ 3.13. In particular, Plaintiff points to Backpage.com’s posting rules and 8 E.g., Cohen, 2017 WL 2092621 at *11 (“Section 230(c)(1) is implicated not only by claims that explicitly point to third party content but also by claims which, though artfully pleaded to avoid direct reference, implicitly require recourse to that content to establish immunity or implicate a defendant’s role, broadly defined, in publishing or excluding third party communications.”). Case 5:17-cv-01264-MWF-FFM Document 18 Filed 06/30/17 Page 19 of 36 Page ID #:425 12 MOTION TO DISMISS 4840-4477-6265v.22 3710078-000083 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DAVIS WRIGHT TREMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 Fax: (213) 633-6899 alleged practice of “reviewing and editing” ads through filtering and moderation, id. ¶ 3.20-3.22, but these editorial practices do not preclude Section 230 immunity, because Backpage.com is not the originator or creator of the allegedly actionable content. Conclusory allegations that it “create[s],” or “develop[s]” content based on general features of its website cannot evade Section 230, because a “plausible” claim that a website created content appearing to come from a user requires “specific alleg[ations]” of fact showing defendant “created the content of the statements” at issue concerning Plaintiff. Kimzey, 836 F.3d at 1268-1269. Here, the conclusory recitations of Backpage.com’s “authorship” are belied by averments that the content of any ads on Backpage.com are provided by third party users—and the content of any ads concerning Plaintiff were provided by Richard. FAC ¶ 3.13 (“sex traf- fickers create and develop sex trafficking ads on www.backpage.com”) (emphasis added); id. ¶ 3.24 (“when a user posted an ad with certain words that … indicated the ad was for sex, the website would remove the offending language”); id. ¶ 2.21 (Richard “took” photographs of Plaintiff and “posted” them to Backpage.com); id. ¶¶ 4.1-4.2 (Plaintiff “was advertised for sex on www.backpage.com by … Richard” (emphasis added)). Plaintiff rests her claims against Backpage on a conclusory allegation that “in exchange for [a] fee, the Backpage.com defendants ‘moderated’ each ad of Jane Doe to make it less obvious that the ads were for sex.” Id. ¶¶ 4.6-4.7. This allegation is nothing more than artful pleading. To suggest that selling space for online ads sub- ject to posting rules is selling “moderation services” is like arguing that charging admission to a nightclub under a “no shirt, no shoes, no service” policy is an example of marketing a “wardrobe service.” When coupled with the averment that Richard was the one who “advertised” Plaintiff, id. ¶¶ 4.1-4.2, the FAC makes clear that any content concerning Plaintiff was provided by a third party, not Backpage—and that, at most, Backpage applied its generally applicable moderation and filtering policies to remove harmful content from the post. Case 5:17-cv-01264-MWF-FFM Document 18 Filed 06/30/17 Page 20 of 36 Page ID #:426 13 MOTION TO DISMISS 4840-4477-6265v.22 3710078-000083 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DAVIS WRIGHT TREMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 Fax: (213) 633-6899 Where “third-party content…appears as an essential component of each and all” of Plaintiff’s claims—as it does here—the claims are barred by Section 230. Doe No. 1, 817 F.3d at 22. There, the plaintiff similarly alleged Backpage had deliberately structured its website, selectively removed content, permitted anony- mous posting, stripped metadata from photos, accepted payments by means that allowed the poster of the ad to remain anonymous, and otherwise tailored its posting requirements to facilitate sex trafficking to maximize profits. Id. at 16-17 & n.2.9 In granting dismissal, the district court found the alleged website features “amount to neither affirmative participation in an illegal venture nor active web content creation,” and noted “courts have repeatedly rejected this ‘entire website’ theory as inconsistent with the substance and policy of section 230.” Doe No. 1, 104 F. Supp. 3d at 152, 156-157, 162. The First Circuit affirmed, holding the claims uniformly “address the structure and operation of the Backpage website”—in other words, “Backpage’s decisions about how to treat [third-party] postings.” Doe No. 1, 817 F.3d at 21. As with the allegations here, the claims challenge features that are part and parcel of the overall design and operation of the website …. Features such as these, which reflect choices about what content can appear on the website and in what form, are editorial choices that fall within the purview of traditional publisher functions. Id. (emphasis added). Likewise, in M.A., plaintiff alleged she was trafficked by a third party who 9 Compare FAC ¶ 1.1 (alleging Backpage Defendants “knowingly created an online marketplace for sex trafficking on www.backpage.com,” then “encouraged and helped sex traffickers to create and develop their sex ads so []Backpage.com [] could profit from the ads.”); id. ¶ 3.22 (citing alleged practice of “removing or editing language that directly or indirectly indicated that the ad was for sex”), id. (character- izing moderation practices as amounting to “sanitizing the ads by making it less obvious [they] were for sex”); id. ¶ 4.7 (alleging “Backpage.com Defendants … posted the sanitized version of each ad [of Plaintiff] on www.backpage.com”); id. ¶ 3.14 (alleging Backpage’s screening “help[s] sex traffickers and prostitutes avoid detection by law enforcement”), id. ¶ 3.30, 3.41 (alleging Backpage provides traf- fickers with “privacy protection” and “enabled sex traffickers to pay for advertise- ments in a covert manner by permitting the use of prepaid cards”); see also Appendix A (comparing allegations in this case to those in Doe No. 1). Case 5:17-cv-01264-MWF-FFM Document 18 Filed 06/30/17 Page 21 of 36 Page ID #:427 14 MOTION TO DISMISS 4840-4477-6265v.22 3710078-000083 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DAVIS WRIGHT TREMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 Fax: (213) 633-6899 posted ads on Backpage.com. 809 F. Supp. 2d at 1043-44. Like Plaintiff here, M.A. attacked the website’s general features, alleging Backpage set out to create “a highly tuned marketing site” with a “veil of legality,” but “had knowledge” that postings “were advertisements for prostitution” and “illegal sexual contact with minors.” Id. at 1044. Also, like Plaintiff, she alleged Backpage sought to profit from the posters’ “illegal prostitution activities” and thus aided and abetted sex trafficking of minors. Id. at 1045, 1053; cf., e.g., FAC. ¶¶ 3.9-3.13, 3.16-3.17, 3.22 (alleging Backpage “knew” ads were for prostitution because of the use of terms such as “escort”, and profited from these ads). The court rejected the plaintiff’s arguments challenging general aspects of the site’s “construct and operation,” M.A., 809 F. Supp. 2d at 1050, holding a website is “immune under § 230 unless it created the offending ads,” and “however horrific the consequences to M.A. … the ads were created by [the pimp].” Id. at 1051 (emphasis added; quotation marks and citation omitted). It was “immaterial” that Backpage allegedly “elicit[ed] online content for profit” because what matters for Section 230 is whether the website or third parties created the content at issue. Id. at 1050 (quotation marks omitted). Compare, e.g., FAC ¶¶ 3.28. Thus, the court rejected M.A.’s assertion she was not seeking to hold Backpage liable as a publisher but rather “as an aider and abettor of minor sex trafficking.” Doe No. 1, 817 F.3d at 1053-54; Compare FAC ¶¶ 3.29, 3.34, 5.3 § II.C. Similarly, attempts to impose liability on a service provider based on allegations it “profited from the activity,” must be dismissed under Section 230. E.g., GoDaddy.com, LLC v. Toups, 429 S.W.3d 752 (Tex. App. Beaumont Apr. 10, 2014). That is so even if it is alleged those posting content engaged in such illegal activity as child pornography, obscenity, or non-consensual “revenge pornography.” Id. at 760 (Section 230’s “plain language … contemplates application of immunity from civil suit … even when the posted content is illegal … or otherwise may form the basis of a criminal prosecution.”); Caraccioli v. Facebook, Inc., 2017 WL Case 5:17-cv-01264-MWF-FFM Document 18 Filed 06/30/17 Page 22 of 36 Page ID #:428 15 MOTION TO DISMISS 4840-4477-6265v.22 3710078-000083 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DAVIS WRIGHT TREMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 Fax: (213) 633-6899 2445063, *1 (9th Cir. 2017) (Facebook not liable for declining to take down photos and videos of plaintiff engaged in explicit sexual activity that were posted without his consent). Numerous other decisions are to the same effect.10 The common thread of these cases is that a plaintiff may not hold a website operator liable for exercising its traditional editorial functions, including deciding what third-party-created content—including classified ads—to post, delete, edit, or deciding what portions of third-party material to remove because it violates the website’s terms of use. Nor may a plaintiff evade Section 230’s protections by attacking the fundamental design and configuration of a website. Where “third-party content … appears as an essential component of each and all” of Plaintiff’s claims, Doe No. 1, 817 F.3d at 22—as it does here—Plaintiff seeks to do what Section 230 expressly prohibits: impose liability on Backpage “as the publisher or speaker,” 47 U.S.C. § 230(c)(1), of ads created by third parties. b. Notice Liability Cannot Defeat Section 230. Nor can Plaintiff evade Section 230 by alleging Backpage knew (or should have known) third parties may misuse its website. See, e.g., FAC ¶¶ 3.4-3.7. First, these general claims of “knowledge” invoke traditional editorial functions that Section 230 immunizes from liability as explained above. See supra IV.A.3.a. Second, Plaintiff’s allegations of knowledge are pure conclusion, with no supporting 10 See, e.g., People v. Ferrer, 2016 WL 7237305, at *1-5 (allegation that Backpage actively ‘manipulated’ the content provided by third parties so that they could profit from activity resulting from the ad placement” could not support liability because ““the substance of the ads came from the original ad placed on Backpage, the only ‘manipulation’ would be in the act of extracting the content from the original ad” (emphasis added)); Doe v. MySpace, 528 F.3d 413, 419-20 (5th Cir. 2008) (Section 230 barred claims seeking to hold social networking site liable for sexual assault of 14-year-old victim by a man who met her on site); Doe II v. MySpace Inc., 175 Cal. App. 4th 561, 573 (2009) (plaintiffs “want MySpace to ensure that sexual predators do not gain access to (i.e., communicate with) minors on its Web site,” yet “[t]hat type of activity—to restrict or make available certain material—is expressly covered by section 230”); Green v. AOL, 318 F.3d 465, 471 (3d Cir. 2003) (plaintiff was “attempt[ing] to hold AOL liable for decisions relating to the monitoring, screening, and deletion of content from its network—actions quintessentially related to a publisher’s role”). Case 5:17-cv-01264-MWF-FFM Document 18 Filed 06/30/17 Page 23 of 36 Page ID #:429 16 MOTION TO DISMISS 4840-4477-6265v.22 3710078-000083 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DAVIS WRIGHT TREMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 Fax: (213) 633-6899 facts tying Backpage’s purported knowledge to the ads concerning Plaintiff. The FAC fails to explain how, from among Backpage.com’s millions of users and ads, Backpage may have acquired knowledge about the ads concerning Plaintiff. Instead, all allegations of “knowledge,” concern Backpage’s alleged practices as a general matter, see, e.g., FAC ¶¶ 3.20, 3.22, 3.24, or are based on Plaintiff’s unfounded and incorrect premise that all “escorts” are “prostitutes,” id. ¶¶ 3.11, 3.16.11 And no facts are alleged that Backpage knew Plaintiff was a minor. Plaintiff essentially claims that, because Backpage removed objectionable content, and some of the ads on Backpage.com included the term “escort,” Backpage is charged with generalized knowledge as to the activity and identity of every ad and every user on its site, id. ¶ 3.6, including Richard and the ads he posted concerning Plaintiff, id. ¶ 4.9. These absurd and conclusory inferences cannot evade Section 230. Moreover, “[i]t is…well established that notice of the unlawful nature of the information provided is not enough to make it the service provider’s own speech.” Lycos, 478 F.3d at 420. See Bates, 2006 WL 3813758, at *3, *6, *18 (immunity applied even where it was alleged Yahoo! “knew or had reason to know about the illegal nature” of the activities of its users). Any “contention that [Backpage] is not entitled to immunity from plaintiff[’s] state law claims” based simply on “the alleged…unlawful nature of the material posted on the website [] is without merit.” GoDaddy, 429 S.W.3d at 760-61. Indeed, even actual knowledge of illegal content posted on its site does not make an online provider liable if it fails to delete the 11 Courts expressly reject this conjecture levelled against Backpage and other web- sites, noting, among other things, that “an advertisement for escort services may be just that.” McKenna, 881 F. Supp. 2d at 1279; see also Dart, 807 F.3d at 234 (“Even if it were true that a “majority of the advertisements [in Backpage's adult section] are for sex”—[ ] a majority is not all, and not all advertisements for sex are []for illegal sex”); Doe v. GTE Corp., 347 F.3d 655, 659 (7th Cir. 2003)) (“Even entities that know the information's content do not become liable for the sponsor's deeds. Does a newspaper that carries an advertisement for ‘escort services' or ‘massage parlors' aid and abet the crime of prostitution, if it turns out that some (or many) of the advertisers make money from that activity?”). Case 5:17-cv-01264-MWF-FFM Document 18 Filed 06/30/17 Page 24 of 36 Page ID #:430 17 MOTION TO DISMISS 4840-4477-6265v.22 3710078-000083 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DAVIS WRIGHT TREMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 Fax: (213) 633-6899 content. See, e.g., Zeran, 129 F.3d at 331-332. That is because “[l]iability upon notice would defeat the dual purposes advanced by § 230[,]” “reinforc[ing] [their] incentives to restrict speech and obtain from self-regulation.” Id. at 333; see also Barrett, 40 Cal. 4th at 41-50 (section 230 barred defamation claims against website, even though defendants received notice that challenged messages on website were allegedly defamatory); Caraccioli, 2017 WL 2445063 at *1 (“Facebook did not become the ‘information content provider under § 230(c)(1) merely by virtue of reviewing the contents of the suspect account and deciding not to remove it”). Courts consistently reject the same argument Plaintiff makes here—that Backpage should be denied immunity because it allegedly knows or should know “of minors being sexually trafficked on its website.” M.A., 809 F. Supp. 2d at 1050-51. Plaintiff’s claims of “notice” cannot defeat immunity. c. Conclusory Allegations of Conspiracy Cannot Overcome Section 230. Nor can Plaintiff evade Section 230 by recasting her claims under “encouragement,” “facilitat[ion],” or “conspiracy” theories, FAC ¶ 3.6, or by alleging Backpage “profited” from trafficking by operating a website containing information posted by others. See, e.g., FAC ¶¶ 1.1, 2.5-2.16, 4.12, 5.30. To be clear, Backpage works to prevent misuse of the website and to combat sex trafficking. But even if Plaintiff’s allegations are credited, they cannot overcome Section 230. Such attempts to impose liability “necessarily treat the website as a publisher or speaker of content provided by third parties and, thus, are precluded by section 230(c)(1).” Doe No. 1, 817 F.3d at 22 (emphasis added). Further, the practices Plaintiff claims “facilitate” or “assist” traffickers are general features of Backpage.com not specifically tied to any ads concerning Plaintiff. See FAC ¶¶ 3.20, 3.38, 3.39, 4.12. In any event, websites cannot be sued on an “encouragement” theory because that would “eclips[e] the immunity from publisher-liability that Congress established.” Jones, 755 F.3d at 414. In many cases “a clever lawyer could argue Case 5:17-cv-01264-MWF-FFM Document 18 Filed 06/30/17 Page 25 of 36 Page ID #:431 18 MOTION TO DISMISS 4840-4477-6265v.22 3710078-000083 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DAVIS WRIGHT TREMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 Fax: (213) 633-6899 that something the website operator did encouraged the illegality,” but such cases “must be resolved in favor of immunity, lest we cut the heart out of section 230 by forcing websites to face death by ten thousand duck-bites, fighting off claims that they promoted or encouraged—or at least tacitly assented—to the illegality of third parties.” Roommates.com, 521 F.3d at 1174. In People v Ferrer, for example, the court dismissed charges against some of the same defendants sued here, rejecting knowing encouragement theory. 2016 WL 7237305 at *7; see also, e.g., Doe v. AOL, 783 So.2d 1010, 1017 (Fla. 2001) (AOL immune from claims it knowingly hosted chat rooms where users violated child pornography laws). The same applies to allegations that Backpage somehow “helps” or “coach[es]” traffickers on how to draft ads to avoid detection by law enforcement. See, e.g., FAC ¶¶ 1.1, 3.22. This is pure speculation, contradicted by Backpage’s well-documented work to assist law enforcement. See Section II.A, supra. Plaintiff’s allegation that Backpage “utilized these ‘moderation’ efforts as a coaching mechanism to teach sex traffickers how to post sanitized sex ads so that the Backpage.com defendants could continue to profit from sex trafficking,” id. ¶ 3.23, distorts the facts that Backpage.com enforces posting and moderation policies (which disallow the use of certain terms or images and prohibit posts made by minors and posted for illegal activities), and generally does not ban or report a user simply for using a prohibited term. See also id. ¶¶ 3.18-3.20. Nor can Plaintiff evade Section 230 by characterizing “features that are part and parcel of the overall design and operation of the website (such as the lack of phone number verification, the rules about whether a person may post after attempting to enter a forbidden term, and the procedure for uploading photographs)” as “enabl[ing]” sex trafficking. Doe No. 1, 817 F.3d at 21; FAC ¶¶ 3.31, 3.41. “Features such as these, which reflect choices about what content can appear on the website and in what form, are editorial choices” Section 230 protects. Id. Ultimately, allegations that Backpage.com’s website design “enable[s]” trafficking, or that it assists in the “creat[ion] or develop[ment]” Case 5:17-cv-01264-MWF-FFM Document 18 Filed 06/30/17 Page 26 of 36 Page ID #:432 19 MOTION TO DISMISS 4840-4477-6265v.22 3710078-000083 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DAVIS WRIGHT TREMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 Fax: (213) 633-6899 of ads or “encourages and helps” trafficking through screening of objectionable content, are precisely the sort of allegations the Doe No. 1 court held could not overcome Section 230 immunity. E.g., Id. ¶¶ 1.1, 3.13-3.14, 3.20. Any other result would discourage the self-policing Section 230 was specifically enacted to encourage. Davis v. Motiva Enterprises, L.L.C., 2015 WL 1535694, *4 (Tex. App. Beaumont Apr. 2, 2015) (Section 230 “allows an interactive computer service provider to ‘establish standards of decency without risking liability for doing so’”) (citation omitted); see also Batzel, 333 F.3d at 1027-28. What’s more, the conclusory civil conspiracy claim, lacking any supporting allegations of Backpage’s agreement with Richard or any other trafficker, see FAC ¶¶ 5.30-5.32, cannot plausibly allege that Backpage conspired with Richard merely by operating a website available to millions of users, much less that Backpage knew that Richard was abusing Plaintiff or that Plaintiff was being sold for sex. Infra, Section ; see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (“a conclusory allegation of agreement at some unidentified point” does not establish conspiracy); Buckey v. County of Los Angeles, 968 F.2d 791, 794 (9th Cir. 1992) (complaint must “allege specific facts to support the existence of a conspiracy among the defendants”); Woodrum v. Woodward County, 866 F.2d 1121, 1126 (9th Cir. 1989) (“allegations of conspiracy must be supported by material facts, not merely conclusory statements”). Section 230 analysis “turns on who was responsible for the specific harmful material at issue, not on whether the service provider was responsible for the general features and mechanisms of the service or other content…that might have also appeared on the service.” Bates, 2006 WL 3813758, at *17 (citing Carafano v. Metrosplash.com, 339 F.3d 1119 (9th Cir. 2003) (emphasis added). As the M.A. court held, Backpage cannot be liable for the “content and consequences of the ads posted by [Richard]” because it did not develop “the specific content that was the source of the alleged liability”. 809 F. Supp. 2d at 1051 (citation omitted). For these Case 5:17-cv-01264-MWF-FFM Document 18 Filed 06/30/17 Page 27 of 36 Page ID #:433 20 MOTION TO DISMISS 4840-4477-6265v.22 3710078-000083 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DAVIS WRIGHT TREMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 Fax: (213) 633-6899 reasons, Section 230 bars Plaintiff’s claims in their entirety. B. Plaintiff Also Fails to State a Claim on Her Various Causes of Action. Even assuming all of Plaintiff’s claims are not barred in their entirety by Section 230, the FAC still fails to state a claim upon which relief can be granted. 1. The Negligence and Assault-and-Battery Claims Both Fail. Plaintiff’s negligence claim is premised on a contradiction: on the one hand, Plaintiff insists Backpage must take precautions to prevent third party “adults working as sex traffickers [from] using their website to post advertisements of minor children for sex”, FAC ¶ 5.4; on the other hand, Plaintiff castigates Backpage for imposing posting guidelines, moderation, and filters that remove the very terms that could advertise illegal services or conduct, id. ¶¶ 3.15, 3.21, 3.24, 3.32, 3.36. Plaintiff similarly attempts to subject Backpage to liability for the alleged assault and battery of Plaintiff by others, by claiming that “the use of www.backpage.com for advertising minors for sex was so pervasive and known to the Backpage.com defendants” that Backpage should be liable for conduct by any and all third party traffickers—including “[t]he harmful and offensive touching of [Plaintiff] by [Richard] and his customers.” FAC ¶ 5.15. California courts follow the rule that “one owes no duty to control the conduct of another, nor to warn those endangered by such conduct.’” Conti v. Watchtower Bible & Tract Soc'y of N.Y., Inc., 235 Cal. App. 4th 1214, 1226 (2015), review with- drawn (July 8, 2015) (quoting Zelig v. County of Los Angeles 27 Cal.4th 1112, 1129 (2002)). In Conti, the California Court of Appeal held that a church had no duty to warn its congregants that a fellow member was a child molester, even though the congregation knew of the member’s past abuse and it was “readily foreseeable that someone who has molested a child may do so again.” Id. at 1227-28. Conti followed a long line of authority holding that “[w]here, as here, a ‘complaint alleges injuries resulting from the criminal acts of third persons ... ‘the common law…does not impose a duty upon a defendant to control the conduct of another, or to warn of such Case 5:17-cv-01264-MWF-FFM Document 18 Filed 06/30/17 Page 28 of 36 Page ID #:434 21 MOTION TO DISMISS 4840-4477-6265v.22 3710078-000083 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DAVIS WRIGHT TREMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 Fax: (213) 633-6899 conduct, unless the defendant stands in some special relationship either to the person whose conduct needs to be controlled, or to the foreseeable victim of such conduct.” Id. at 1227 (emphasis in original). Such a “special relationship” giving rise to a duty is generally only found where the defendant has specifically and directly undertaken a relationship with the particular plaintiff or assailant that places the plaintiff in danger—and even in circumstances that meet those criteria, courts are reluctant to extend a duty to warn of others’ conduct. See Koepke v. Loo, 18 Cal. App. 4th 1444, 1451-1457 (1993) (collecting cases). In Koepke, the defendant’s employee and former lover threatened the plaintiff and pointed a gun at her head. Id. at 1447. The defendant then took the third-party’s gun and told the plaintiff “you don’t have to worry. I have the gun.” Id. Without telling the plaintiff, the defendant then returned the gun and ammo to the employee, who then shot and grievously injured the plaintiff. Id. at 1448. Noting the public interest in avoiding hampering speech with duties to warn, the court held that the defendant could not be liable as a matter of law, “even though [the defendant] might reasonably be found to have anticipated possible peril to [the plaintiff] when [the third party] retook possession of his gun.” Id. at 1458. Here, Backpage had no duty to warn Plaintiff, or to report Richard to the police, as it is not alleged to have any special relationship with either Plaintiff or Richard. Backpage’s only connection is that it operated a website where millions of users, including Richard, posted advertisements. See Supra, Section II.A. The FAC is devoid of any facts to demonstrate that Backpage “knew or should have known” that Plaintiff was at risk from Richard. See Supra Section II.B. In addition, plaintiff erroneously claims that Backpage “took no steps” to prevent trafficking, FAC ¶ 5.4, but tellingly does not specify what precautions Backpage should have taken to ferret out illegal advertisements. In fact, Backpage took extensive precautions, which the FAC acknowledges, such as including links for users to report abuse on each advertisement, having Backpage employees report Case 5:17-cv-01264-MWF-FFM Document 18 Filed 06/30/17 Page 29 of 36 Page ID #:435 22 MOTION TO DISMISS 4840-4477-6265v.22 3710078-000083 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DAVIS WRIGHT TREMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 Fax: (213) 633-6899 suspected illegal ads to NCMEC, promulgating and requiring agreement to posting rules prohibiting terms that indicate the sale of sex or a minor, and using moderation and filtering to remove such terms. FAC ¶¶ 3.15, 3.21, 3.24, 3.32, 3.36. Nonethe- less, the FAC alleges Backpage “refused to implement any meaningful or reasonable system to prevent” trafficking because it did not require every user to provide photo identification before posting one of the millions of ads that appears on the site. FAC ¶3.34. Backpage cannot be held liable because it failed to exercise its editorial prerogative in this manner, nor is there any reason to believe that such an easily bypassed “precaution” would have prevented Plaintiff’s claimed harm.12 At bottom, Plaintiff seeks to create precisely the Catch-22 Section 230 was intended to prevent, as any precautions Backpage takes are construed as “help[ing]” traffickers. 2. The Intentional Infliction of Emotional Distress Claim Fails. To be liable for intentional infliction of emotional distress (“IIED”), the “defendant must have engaged in ‘conduct intended to inflict injury or engaged in with the realization that injury will result.’” Christensen v. Superior Court, 54 Cal. 3d 868, 903 (1991). Moreover, “It is not enough that the conduct be intentional and outrageous. It must be conduct directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware.” Id. (emphasis added). Here, Plaintiff’s allegations boil down to a suggestion that, having received vague “notice” of potential trafficking, Backpage “allowed” it to happen by failing to take Plaintiff’s preferred precautions to stop it, e.g., FAC ¶ 5.7—a claim that, even if true, does not allege the requisite intent. Moreover, the FAC’s allegations make clear that Backpage did not direct any outrageous conduct at Plaintiff in particular; rather, the claim is based on conclusory allegations that Backpage “facilitates” trafficking by 12 The FAC does not specify how Backpage should have required photo identifica- tion, particularly since Backpage, as a website without a physical presence near its users, would not be in a position, unlike security personnel at a bar or airport, to verify that the identification was valid, was not forged or manipulated, and was the actual identification of the person referenced in the ad. Case 5:17-cv-01264-MWF-FFM Document 18 Filed 06/30/17 Page 30 of 36 Page ID #:436 23 MOTION TO DISMISS 4840-4477-6265v.22 3710078-000083 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DAVIS WRIGHT TREMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 Fax: (213) 633-6899 operating a website, and such “trafficking” has damaged various minors, “including Plaintiff.” Id. ¶¶ 5.7 (alleging Backpage “engaged in extreme and outrageous conduct by allowing sex traffickers to advertise children for sex on their website, including Plaintiff” (emphasis added)); 5.9 (alleging “extreme and outrageous conduct would inflict severe emotional and psychological distress on others, including Plaintiff” (emphasis added)). Because Backpage did not direct any conduct, intentionally, recklessly, or otherwise, toward Plaintiff, the IIED claim fails. Nor could Backpage’s ordinary operation of a website constitute outrageous conduct as a matter of law. 3. The Invasion of Privacy Claim Fails. Plaintiff’s vague claim for invasion of privacy assertedly “includes, but is not limited to, intrusion upon seclusion and public disclosure of private facts.”13 FAC ¶ 5.27. The element of intrusion, however, requires, among other things, that defendant “intentionally…penetrated some zone of physical or sensory privacy surrounding, or obtained unwanted access to data about, the plaintiff” so as to be “highly offensive.” Shulman v. Grp. W Prods., Inc., 18 Cal. 4th 200, 231 (1998), as modified on denial of reh'g (July 29, 1998) (emphasis added). The FAC premises the intrusion claim on Plaintiff’s allegation that Backpage.com “knew or should have known” that third-party sex traffickers were “taking sexually suggesting photographs of minor children, like Plaintiff” and posting them. FAC ¶ 5.28; see id. ¶ 2.21. Thus, it is clear Backpage is not alleged to have participated, intentionally or otherwise, in any intrusion—nor can the defective claim of conspiracy render Backpage liable for Richard’s acts, of which Backpage had no knowledge, despite the FAC’s improper attempt to charge Backpage with constructive knowledge of the activities of all of its 13 One of the elements of the public disclosure of private facts tort is that the defendant published information, Moreno v. Hanford Sentinel, Inc., 172 Cal. App. 4th 1125, 1129 (2009), as modified at 2009 Cal. App. LEXIS 646 (Apr. 30, 2009), further highlighting that Plaintiff’s claims aim to hold Backpage liable as the publisher of information provided by its users, in violation of Section 230. Case 5:17-cv-01264-MWF-FFM Document 18 Filed 06/30/17 Page 31 of 36 Page ID #:437 24 MOTION TO DISMISS 4840-4477-6265v.22 3710078-000083 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DAVIS WRIGHT TREMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 Fax: (213) 633-6899 users. See, e.g., FAC ¶¶ 3.6, 3.15, 3.22, 3.24; see Infra Section IV.A.3.b. 4. The Conspiracy Claim Fails. California does not recognize conspiracy as a freestanding cause of action. Kenne v. Stennis, 230 Cal. App. 4th 953, 968-969 (2014). Rather, it is a “theory of liability” that depends on the commission of an underlying tort by parties who share “a common plan or design”. Id. To state a claim based on conspiracy, the plaintiff “must allege the formation and operation of the conspiracy, the wrongful act or acts done pursuant to it, and the damage resulting from such acts. In making such allegations bare legal conclusions, inferences, generalities, presumptions, and conclusions are insufficient.” State of Cal.ex rel. Metz v. CCC Info. Svcs., Inc., 149 Cal. App. 4th 402, 419 (2007) (emphasis added) (internal citations omitted) (allegations that parties “conspired to conceal their improper loss valuations” amounted to “bare legal conclusions”; affirming grant of demurrer). Because “[c]onspiracy is not an independent tort[,] it cannot create a duty or abrogate an immunity.” Applied Equip. Corp. v. Litton Saudi Arabia Ltd., 7 Cal. 4th 503, 514 (1994). Moreover, “tort liability arising from conspiracy presupposes that the coconspirator is legally capable of committing the tort, i.e., that he or she owes a duty to plaintiff recognized by law and is potentially subject to liability for breach of that duty.” Id. (a party who owes no duty to the plaintiff “cannot be bootstrapped into tort liability by the pejorative plea of conspiracy”). Plaintiff’s conclusory allegations of conspiracy cannot satisfy the elements of the cause of action, i.e., the formation of a conspiracy through an actual agreement to a common plan or design among Backpage, Richard, or any of the other unspecified purported “conspirators.” See FAC ¶¶ 5.30-5.31 (unspecified “defendants engaged in a plan or conspiracy to use www.backpage.com to advertise coerced adults and children for sex, including Plaintiff”). The FAC does not allege any specific agreement, plan, or interaction between Richard and Backpage, and apparently is premised on Backpage’s exercise of editorial functions in operating Backpage.com, Case 5:17-cv-01264-MWF-FFM Document 18 Filed 06/30/17 Page 32 of 36 Page ID #:438 25 MOTION TO DISMISS 4840-4477-6265v.22 3710078-000083 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DAVIS WRIGHT TREMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 Fax: (213) 633-6899 and Richard’s use of Backpage.com as one of the website’s millions of users. See id. 5.30-5.32. Moreover, because Backpage did not owe Plaintiff a duty to warn or report Richard to the police, and because Section 230 provides a complete immunity from suit, Plaintiff “cannot … bootstrap[ ] [Backpage] into tort liability by the pejorative plea of conspiracy.” Litton Saudi Arabia Ltd., 7 Cal. 4th at 514. 5. The Unjust Enrichment Claim Fails. Unjust enrichment is “not a valid cause of action under California law.” Melchior v. New Line Prods., Inc., 106 Cal. App. 4th 779, 785, 793 (2003) (affirming dismissal of purported unjust enrichment claim). Rather, it is “‘a general principle, underlying various legal doctrines and remedies,’ rather than a remedy itself.” Id. (internal citations omitted). In addition, because it did not act wrongfully or illegally, as discussed above, and because it cannot and should not be held liable for the actions of some of its many third-party users under Section 230, Backpage has not unjustly retained any benefit. The unjust enrichment claim thus must be dismissed. V. CONCLUSION Consistent with Congress’ binding policy judgment in Section 230 that “plain- tiffs may hold liable the person who creates or develops [the] unlawful content, but not the interactive computer service provider who merely enables that content to be posted,” Nemet, 591 F.3d at 254, this Court should dismiss the FAC in its entirety. DATED: June 30, 2017 DAVIS WRIGHT TREMAINE LLP SCOTT R. COMMERSON BRENDAN N. CHARNEY JAMES GRANT ROBERT CORN-REVERE RONALD LONDON By: /s/ Scott R. Commerson Scott R. Commerson Attorneys for Defendants MEDALIST HOLDINGS, INC.; LEEWARD HOLDINGS, L.L.C.; CAMARILLO HOLDINGS, L.L.C.; DARTMOOR Case 5:17-cv-01264-MWF-FFM Document 18 Filed 06/30/17 Page 33 of 36 Page ID #:439 26 MOTION TO DISMISS 4840-4477-6265v.22 3710078-000083 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DAVIS WRIGHT TREMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 Fax: (213) 633-6899 HOLDINGS, L.L.C.; IC HOLDINGS, L.L.C.; BACKPAGE.COM, L.L.C; UGC TECH GROUP C.V.; CARL FERRER; JAMES LARKIN; MICHAEL LACEY; and ATLANTISCHE BEDRIJVEN C.V. Case 5:17-cv-01264-MWF-FFM Document 18 Filed 06/30/17 Page 34 of 36 Page ID #:440 1 MOTION TO DISMISS 4840-4477-6265v.22 3710078-000083 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DAVIS WRIGHT TREMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 Fax: (213) 633-6899 APPENDIX A Case 5:17-cv-01264-MWF-FFM Document 18 Filed 06/30/17 Page 35 of 36 Page ID #:441 1 MOTION TO DISMISS 4840-4477-6265v.22 3710078-000083 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DAVIS WRIGHT TREMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 Fax: (213) 633-6899 First Amended Complaint, as amended, Jane Doe et al. v. Medalist Holdings, LLC et al. (“FAC”) Second Amended Complaint, Doe No. 1 et al. v. Backpage.com et al., no. 1: 14‐cv‐13870 (D. Mass., filed Dec. 29, 2014) (ECF No. 22) (“SAC”) “The Backpage.com defendants knowingly and intentionally developed www.backpage.com as a website where sex traffickers and prostitutes advertise commercial sex and where commercial sex customers can find it … The Backpage.com defendants have profited tens of millions of dollars from their active participation in sex trafficking … despite knowing that the profits were generated as a result of illegal sex trafficking.” (FAC ¶¶ 3.4‐3.5.) “The Backpage Defendants knowingly participated in and benefitted financially from the unlawful sexual exploitation suffered by the plaintiffs … the Backpage Defendants solicited and accepted money from the pimps who illegally recruited, manipulated, enticed, and coerced the plaintiffs into engaging in commercial sex acts” (SAC ¶ 4.) “The Backpage.com defendants cannot dispute that their ‘posting rules,’ ‘content requirements,’ and ‘moderation'’ practices were all designed and utilized to help sex traffickers create and develop ads for sex that would evade law enforcement.” (FAC ¶ 3.26.) Backpage “assist[ed] in the crafting, placement, and promotion of illegal advertisements offering the plaintiffs for sale that would attract potential customers yet escape detection by law enforcement.” (SAC ¶ 4.) “The Backpage.com defendants enabled sex traffickers to pay for advertisements in a covert manner by permitting the use of prepaid credit cards that did not need to be linked to a name, address, or any other identifying information.” (FAC ¶ 3.41.) “Backpage.com allows users to pay for advertisements using prepaid credit cards that need not be linked to a name, address, or any other identifying information” (SAC ¶ 47.) “After sexually suggestive text and images were removed, the ‘moderators’ would post the remainder of the ad. Through this ‘moderation" practice’ the Backpage.com defendants intended to hide the criminality of their website and were able to reap tens of millions of dollars in profits from advertisements that they knew were generated from illegal sex ads and sex trafficking. The Backpage.com defendants also utilized these ‘moderation’ efforts as a coaching mechanism to teach sex traffickers how to post sanitized sex ads so that the Backpage.com defendants could continue to profit from sex trafficking.” (FAC ¶ 3.22.) “By flagging certain terms for posters and allowing the posters to adjust those terms and continue posting their advertisements, Backpage.com attempts to essentially coach individuals about how to advertise the sale of sexual services and the exploitation of underage sex trafficking victims without including terms that will most likely trigger detection by law enforcement.” (SAC ¶ 57.) “the Backpage.com defendants actively encouraged and assisted sex traffickers in their illicit trade and have been a major player in the sex trafficking trade. As a result, countless women and children have been trafficked for sex on the www.backpage.com website since its inception in 2004.” (FAC ¶ 3.38.) “The consequence of these various actions by the Backpage Defendants has been to dramatically increase the revenues and market share of Backpage.com, increase the market demand for illegal sex with children, increase the number of child sex trafficking victims that are advertised for sale on Backpage.com, increase the number of times each particular victim is raped or otherwise sexually exploited, and impede law enforcement’s ability to find and recover victims.” (SAC ¶ 10.) Case 5:17-cv-01264-MWF-FFM Document 18 Filed 06/30/17 Page 36 of 36 Page ID #:442