Preview
18C0V328915
Santa Clara — Civil
R, Aragon
Electronically Filed
Laura L. Ho (SBN 173179) by Superior Court of CA,
Tho@gbdhlegal.com
James Kan (SBN 240749) County of Santa Clara,
jkan@gbdhlegal.com on 4/26/2023 5:19 PM
Katharine L. Fisher (SBN 305413) Reviewed By: R. Aragon
kfisher@gbdhlegal.com Case #18CV328915
Mengfei Sun (SBN 328829) Envelope: 11817245
msun@gbdhlegal.com
GOLDSTEIN, BORGEN, DARDARIAN & HO
155 Grand Avenue, Suite 900
Oakland, CA 94612
Tel: (510) 763-9800
Fax: (510) 835-1417
Julian Hammond (SBN 268489)
jhammond@hammondlawpe.com
Ari Cherniak (SBN 290071)
acherniak@hammondlawpc.com
10 Polina Brandler (SBN 269086)
pbrandler@hammondlawpc.com
11 HAMMONDLAW, PC
11780 W Sample Road, Suite 103
12 Coral Springs, FL 33065
Tel: (310) 601-6766
13 Fax: (310) 295-2385
14 Attorneys for Plaintiffs and the Certified Class
15
SUPERIOR COURT OF THE STATE OF CALIFORNIA
16
FOR THE COUNTY OF SANTA CLARA
17
18
ANGEL CHAVEZ, NICHOLAS JOEL LUSKIN, and] Case No. 18CV328915
19 SALVADOR DE LA O, individually and on behalf of
all others similarly situated, PLAINTIFFS’ OPPOSITION TO
20
DEFENDANT’S MOTION TO DECERTIFY
21 Plaintiffs, CLASS
22 VS. Date: June 1, 2023
Time: 1:30 p.m.
23 GOOGLE, LLC., a California Limited Liability Dept: 1
Company, Before: Hon. Sunil R. Kulkarni
24
25 Defendant. Trial Date: None Set
26
27
28
PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO DECERTIFY CLASS — CASE NO. 18CV328915
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TABLE OF CONTENTS
Page
INTRODUCTION
I RELEVANT BACKGROUND..............
TL. LEGAL STANDARD
IV. ARGUMENT
A The Unconditional Gift Provision Applies to Google Play App Subscriptions. ...........
1 Google Play App Subscriptions Are Covered Products. ...........:.:sssssesseseseeeeneerees 6
2. The Plain Language of the Unconditional Gift Provision Includes Google
Play Apps. ..........+
10
Section 17603 Is Not limited to Tangible, Physical Objects.
11
Shipping Costs Are Only One Example of An Obligation A Consumer Does
12 Not Have Towards Google.
13 2 Services Are Not Omitted from Section 17603 10
14 B Plaintiff's Full Refund Theory Is Restitutionary. ............sssesessesesesseeseeseseeeeasensneeeeneeeeeeee 11
15 1 Class Members Have an Ownership and Vested Interest in Monies Google
Unlawfully Charged Them, and the Return of that Money is Not a
16 Nonrestitutionary “Pemalty.” .......cececeeeecseseseesesesseseseeseaeseeseeesesneeteneessesuenseneeeaeeee 12
17 Plaintiff and the Class Have an “Ownership Interest. 12
18 Plaintiff and the Class Have a “Vested Interest.” .........cscseeeeeeseeeeeesees 13
19 Mayron Does Not Depart from the California Supreme Court’s
Jurisprudence. 1S
20
Entitlement to a Full Refund Under the Gift Theory Does Not Require
21 Valuation of a Supposed Benefit. 17
22 Vv. CONCLUSION 20
23
24
25
26
27
28
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TABLE OF AUTHORITIES
Page(s)
State Cases
Agnew vy. State Bd. of Equalization,
21 Cal. 4th 310 (1999) 10
City of Cerritos v. State,
239 Cal. App. 4th 1020 (2015)
City of Ontario v. Superior Court,
12 Cal. App. 4th 894 (1993)...
City of San Jose v. Superior Court,
10
2 Cal. 5th 608 (2017)
11
Colgan v. Leatherman Tool Grp.,_Inc.,
12 135 Cal. App. 4th 663 (2006)... 15
13 Cortez v. Purolator Air Filtration Prod. Co.,
23 Cal. 4th 163 (2000) 12, 13, 14, 16
14
Dudek v. Dudek,
15 34 Cal. App. 5th 154 (2019) 14
16
Fluor Corp. v. Superior Court,
17 61 Cal. 4th 1175 (2015)
18 Google LLC v. Superior Court,
No. H049451 (Cal. App. Oct. 4, 2021)
19
Green v. Obledo,
20 29 Cal. 3d 126 (1981)
21
People ex rel. Harris v. Aguayo,
22 11 Cal. App. 5th 1150 (2017) 14
23 People ex rel. Harris v. Sarpas,
225 Cal. App. 4th 1539 (2014) 13
24
Jiagbogu v. Mercedes-Benz USA,
25 118 Cal. App. 4th 1235 (2004) 20
26 People ex rel. Kennedy v. Beaumont Inv., Ltd.
27
111 Cal. App. 4th 102 (2003)... 15
28 Kight v. CashCall, Inc.,
231 Cal. App. 4th 112 (2014) 1,4
lil
PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO DECERTIFY CLASS — CASE NO. 18CV328915
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Korea Supply Co. v. Lockheed Martin Corp.,
29 Cal. 4th 1134 (2003) passim
Kwikset Corp. v. Superior Court,
51 Cal. 4th 310 (2011) 19
Lee v. Luxottica Retail North America, Inc.,
65 Cal. App. 5th 793 (2021) 16
Lungren v. Deukmejian,
AS Cal. 3d 727 (1988) ...seeseeeeee
Major v. Silna,
134 Cal. App. 4th 1485 (2005)
Malek v. Blue Cross of Cal.,
10 121 Cal. App. 4th 44 (2004)... 14
11 Mayron y. Google LLC,
54 Cal. App. 5th 566 (2020) passim
12
Moores v. Bd. of Sup’rs of Mendocino Cnty.
13 122 Cal. App. 4th 883 (2004)
14 Niedermeier v. FCA US LLC,
15 56 Cal. App. 5th 1052 (2020) 20
16 In re O’Connor,
87 Cal. App. 5th 90 (2022)
17
People v. Davis,
18 126 Cal. App. 4th 1416 (2005)
19 Pineda v. Bank of Am., N.A.,
50 Cal. 4th 1389 (2010) 13, 16
20
21 Reno v. Baird,
18 Cal. 4th 640 (1998) 10
22
Shersher v. Superior Court,
23 154 Cal. App. 4th 1498 (2007) 13, 15, 16
24 In re Steroid Hormone Prod. Cases,
181 Cal. App. 4th 145 (2010)... eee 2s
25
In re Tobacco Cases II,
26
240 Cal. App. 4th 779 (2015) 2, 17, 20
27
In Re Tobacco II Cases,
28 46 Cal. 4th 298 (2009) 11
iv
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Troyk v. Farmers Grp., Inc.,
171 Cal. App. 4th 1305 (2009) 13
In re Vioxx Class Cases.
180 Cal. App. 4th 116 (2009) 2, 11, 12, 15
Wasatch Prop. Mgmt. v. Degrate
35 Cal. 4th 1111 (2005)
Williams v. Superior Court,
221 Cal. App. 4th 1353 (2013)
Youtube, LLC v. The Superior Court of Santa Clara County,
No. H050570 (Ct. App. Nov. 21, 2022)
Federal Cases
10
Allen v. Hyland’s Inc.
11 300 F.R.D. 643 (2014) 19
12 Allen v. Similasan Corp.,
306 F.R.D. 635 (S.D. Cal. 2015) 19
13
Barrera v. Pharmavite, LLC,
14 No. 2:11-cv-04153-CAS-AGR, 2016 WL 11758373 (C.D. Cal. June 2, 2016) 19
15
Brazil v. Dell Inc.,
16 585F. Supp. 2d 1158 (N.D. Cal. 2008)
17 Caldera v. JM. Smucker Co.
No. 2:12-cv-04936-GHK-VBK, 2014 WL 1477400 (C.D. Cal. Apr. 15, 2014). 20
18
Capaci v. Sports Research Corp.,
19 No. 2:19-cv-03440-FMO-FFM, 2022 WL 1133818 (C.D. Cal. Apr. 14, 2022) 19
20
Challenge Printing Co., Inc. v. Electronics a cece Inc.,
21 500F. Supp. 3d 952 (N.D. Cal. 2020)....
22 Chowning v. Kohl’s Dep’t Stores, Inc.,
No. 2:15-cv-08673-RGK-SP, 2016 WL 1072129 (C.D. Cal. Mar. 15, 2016) 20
23
Digital Ally, Inc. v. Z3 Tech., LLC,
24 No. 2:09-cv-02292-KGS, 2010 WL 3974674 (D. Kan. Sept. 30, 2010)
25 In re Facebook, Inc., PPC Advert. Litig.,
282 F.R.D. 446 (N.D. Cal. 2012) 20
26
Fraley v. Facebook, Inc.,
830 F. Supp. 2d 785 (2011) 17
28
PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO DECERTIFY CLASS — CASE NO. 18CV328915
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Gross v. Symantec Corp.,
No. 3:12-cv-00154-CRB, 2012 WL 3116158 (N.D. Cal. July 31, 2012)
Haskins v. Symantec Corp.,
No. 3:13-cv-01834-JST, 2013 WL 6234610 (N.D. Cal. Dec. 2, 2013)
Johnson v. Pluralsight, LLC,
728 F. App’x 674 (9th Cir. 2018) 1,6
In re JUUL Labs, Inc., Mktg. Sales Pracs. & Prods. Liab
609 F. Supp. 3d 942 (N.D. Cal. 2022)... 18
King v. Bumble Trading, Inc.,
393 F. Supp. 3d 856 (N.D. Cal. 2019)
Kissel v. Code 42 Software, Inc.,
10 No. 15-cv-01936-JLS, 2016 WL 7647691 (C.D. Cal. Apr. 14, 2016)...
11 Korolshteyn v. Costco Wholesale Corp.,
No. 3:15-cv-00709-CAB-RBB, 2017 WL 1020391 (S.D. Cal. Mar. 16, 2017) 19
12
Krueger v. Wyeth,
13 396 F. Supp. 3d 931 (S.D. Cal. 2019) 17, 19
14 Ladore v. Sony Computer Ent. Am., LLC,
15 75 F. Supp. 3d 1065 (N.D. Cal. 2014)
16 Lambert v. Nutraceutical Corp.,
No. 2:13-cv-05942-AB-E, 2020 WL 12012559 (C.D. Cal. Jan. 8, 2020) 19
17
Lopez v. Stages of Beauty, LLC,
18 307 F. Supp. 3d 1058 (2018) 17
19 Makaeff v. Trump Univ.,
309 F.R.D. 631 (S.D. Cal. 2015) 19
20
21 McCrary v. Elations Co. LLC,
No. 5:13-cv-00242-JGB-SP, 2014 WL 12589137 (C.D. Cal. Dec. 2, 2014) 19
22
In re Morning Song Bird Food Litig.,
23 320 F.R.D. 540 (S.D. Cal. 2017) 19
24 Omidi v. Wal-Mart Stores, Inc.,
No. 3:14-cv-00857-JAH-BLM, 2020 WL 1332594 (S.D. Cal. Mar. 23, 2020)... 13
25
Pepper v. Charitable Res. Found., Inc.,
26
No. 2:14-cv-02573-SVW-FFM, 2014 WL 12961327 (C.D. Cal. Oct. 14, 2014) 17
27
In re POM Wonderful LLC,
28 No. 2:10-ml-02199-DDP-RZ, 2014 WL 1225184 (C.D. Cal. Mar. 25, 2014) 20
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Pulaski & Middleman, LLC v. Google, Inc.,
802 F.3d 979 (9th Cir. 2015) 2, 17,18
Red v. Kraft Foods, Inc.,
No. 2:10-cv-01028-GW-AGR, 2012 WL 8019257 (C.D. Cal. Apr. 12, 2012) 20
Rikos v. Procter & Gamble Co.,
799 F.3d 497 (6th Cir. 2015) 19
Robinson v. OnStar, LLC,
No. 3:15-cv-01731-TWR-DEB, 2020 WL 364221 (S.D. Cal. Jan. 22, 2020) 3, 11,20
Roz v. Nestle Waters N. Am., Inc.,
No. 2:16-cv-04418-SVW-JEM, 2017 WL 132853 (C.D. Cal. Jan. 11, 2017) 5, 10
RRX Indus., Inc. v. Lab-Con, Inc.,
10 772 F.2d 543 (9th Cir. 1985)...
11 Snow v. Align Tech., Inc.,
No. 3:21-cv-03269-VC 2022, 2022 WL 1396223 (N.D. Cal. May 4, 2022) 13
12
Spann v. J.C. Penny Corp. (Spann 1),
13 No. 8:12-cv-00215-FMO-KES, 2015 WL 1526559 (C.D. Cal. Mar. 23, 2015) 13
14 Stathakos v. Columbia Sportswear Co.,
15 No. 4:15-cv-04543-YGR, 2017 WL 1957063 (N.D. Cal. May 11, 2017) 20
16 United States v. Allison,
587 F. Supp. 3d 1015 (E.D. Cal. 2022) 14, 19
17
Waldrup v. Countrywide Fin. Corp.,
18 No. 2:13-cv-08833-CAS-AGR, 2018 WL 799156 (C.D. Cal. Feb. 6, 2018) 19
19 Woodard v. Labrada,
No. 5:16-cv-00189-JGB-SP, 2021 WL 4499184 (C.D. Cal. Aug. 31, 2021). 19
20
21 Yamagata v. Reckitt Benckiser LLC,
445 F. Supp. 3d 28 (N.D. Cal. 2020) 19
22
State Statutes
23
Cal. Unfair Competition Law, Cal. Bus. & Prof. Code
24 §§ 17200 et SOQ. .oeseeseessesssescsessesesrssesesnensavscnesreneaesneneavenenesesneatsnsnsacsensansasacateneacanensateneacarenentens passim
25
26
27
28
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Cal. Automatic Renewal Law, Cal. Bus. & Prof. Code
§§ 17600 ef seg. 1... passim
Cal. Civ. Code
§ 1146 19
§ 1689.24(c)
§ 3344 17
Cal. Com. Code
§ 2105(1)
Cal. Fam. Code
§ 6750(a)(2)
Cal. Fin. Code
§ 18420(1)
10
Cal. Lab. Code
11 § 203 16
12
Cal. Penal Code
13 OS ee 17
14 Other Authorities
15 Black’s Law Dictionary (11th ed. 2019) 11
16 Merriam-Webster Dict. Online (2023)
17 Unif. Com. Code
§ 2-105(1)
18
19
20
21
22
23
24
25
26
27
28
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I INTRODUCTION
This Court has already rejected Defendant’s arguments at least three times — in the Demurrer and
the Class Certification Order in this case, and the Class Certification Order in the parallel case of Dutcher v.
Google LLC, No. 20-CV-366905. “A motion for decertification is not an opportunity for a disgruntled
class defendant to seek a do-over of its previously unsuccessful opposition to certification.” Kight v.
CashCall, Inc., 231 Cal. App. 4th 112, 125-26 (2014). Thus, “‘[i]n the absence of materially changed or
clarified circumstances[,] ... courts should not condone a series of rearguments on the class issues[.]”” Jd.
(citations and quotation marks omitted).
On the merits, Defendant’s recycled arguments fare no better. First, Defendant’s contention that
10 Google Play Apps are not subject to the unconditional gift provision of the Automatic Renewal Law
11 (“ARL”), Cal. Bus. & Prof. Code §§ 17600 ef seq., rests on its faulty assumption that they are a “service”
12 and “services” are not covered by section 17603.! Def’s Mot. to Decertify (“Mot.”) at 3-5. This Court has
13 already rejected those assumptions and should do so again. See Order after Hearing on February 1, 2019
14 (“Demurrer Order”) at 14 and section IV.A, infra. Moreover, the music, books, periodicals, games, and
15 videos at issue are just like the materials the Ninth Circuit found to be subject to section 17603 in Johnson
16 v. Pluralsight, LLC, 728 F. App’x 674, 677 (9th Cir. 2018) (applying 17603 where “subscriptions grant
17 users a license to download materials such as exercise files, course slides, and sample codes, all of which
18 may ostensibly be printed and used as part of the users’ educational training”).
19 Next, Defendant is wrong that “the gift provision does not provide a basis for awarding a full
20 refund as restitution because it does not create a vested interest in money or property,” Mot. at 1, 6-7.
21 There is no question that Plaintiff and class members have an ownership interest in the money they paid to
22 Google, or that section 17603 vests the full amount of monies paid as Plaintiff and class members’ property
23 where money obtained for an unconditional gift “can be likened to ‘property’ converted by” a defendant
24 that, in equity, “can be the subject of a constructive trust.” See section IV.B.1., infra.
25 Finally, Defendant contends that Plaintiff “must account for the benefit each class member
26 received,” Mot. at 8, 10, to be able to obtain restitution. But, that is not the law. The price differential
27
' Code citations are to California Business and Professions Code unless specifically noted.
28 ? Exhibit 2 to Decl. of Mengfei Sun in support of Pl’s Opp’n to Def’s Mot. to Decertify Class (“Sun
Decl.”), submitted herewith.
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model is not the exclusive measure of restitution. See In re Tobacco Cases II, 240 Cal. App. 4th 779, 792
(2015) (“We agree that Vioxx does not purport to set forth the exclusive measure of restitution potentially
available in a UCL case.”) There is no need to account for any supposed “benefit” when charging the
consumer for the product was unlawful in and of itself. See, e.g., In re Steroid Hormone Prod. Cases, 181
Cal. App. 4th 145, 160 (2010) (valuation not at issue because the consumers alleged that defendant sold a
product that was unlawful to sell, such that they were entitled to a full refund no matter any supposed value
retained). Where “a defendant has wrongfully obtained a plaintiff’s property, ‘the measure of recovery for
the benefit received ... is the value of the property at the time of its improper acquisition.” Pulaski &
Middleman, LLC vy. Google, Inc., 802 F.3d 979, 988-89 (9th Cir. 2015) (citation omitted); see section
10 IV.B.2, infra.
11 Accordingly, Plaintiff’s full refund measure of restitution is appropriate, and Defendant’s Motion to
12 Decertify the Class should be denied in its entirety.
13 Il. RELEVANT BACKGROUND
14 Plaintiffs filed this action in May 2018 to challenge Google’s practice of offering automatically
15 renewing in-app subscriptions through its Google Play Store without fully disclosing the material terms
16 required by the ARL and obtaining consumers’ affirmative consent before charging them for the
17 subscriptions. On February 1, 2019, the Court overruled Google’s demurrer. Relevant to the instant
18 motion, this Court concluded that “section 17603 applies to digital subscriptions.” Demurrer Order at 14.
19 The Court found that references to shipping costs “do not ultimately show that the Legislature intended to
20 exclude digital subscriptions from the protections of 17603,” particularly where it uses the broader term
21 “sends” to describe how products within its ambit reach consumers. /d. at 12 (emphasis in original). The
22 Legislature “would have used more precise language to exclude [digital subscriptions] from the effects of
23 section 17603 if it meant to,” and this conclusion is consistent with a “liberal reading of the Automatic
24 Renewal Law to effectuate its purpose.” /d. “There is no obvious reason why the Legislature would
25 declare physical products sent in violation of the ARL ‘an unconditional gift to the consumer’ while
26 allowing businesses to impose obligations on consumers who receive digital subscriptions in violation of
27 the law.” Jd. at 12-13. Shipping costs are “expressly only examples of the obligations that the statute
28 addresses,” and the statute “explicitly and broadly encompasses ‘any obligation whatsoever by the
2
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consumer.” Jd. at 13. “[O]ne such obligation is the recurring charge to a consumer’s credit card itself — the
main problem that the ARL is intended to address.” Id. “Google’s digital delivery of music to consumers
falls within section 17603” because the language of the statute “does not suggest a distinction between
different methods of transmission of digital goods.” Id. at 13-14.3
On August 5, 2021, the Court certified the class.* Relevant to the instant motion, the Court already
rejected Defendant’s argument that Mayron v. Google LLC, 54 Cal. App. 5th 566 (2020) forecloses
Plaintiffs’ theory that restitution should be the full amount paid for the subscriptions pursuant to section
17603’s “unconditional gift provision.” Class Cert. Order at 13. The Court explained that “Mayron
addressed the gift provision solely in the context of standing” and emphasized that “eligibility for a remedy
10 and standards for causation under § 17200 are ‘wholly distinct” /d. (internal citations omitted) (further
11 noting Mayron had expressly “not reach[ed]the issue of whether the gift provision applies only to tangible
12 goods and not to a data storage plan like Google Drive”). Further, the court found that Robinson v. OnStar,
13 LLC, No. 3:15-cv-0173 1-TWR-DEB, 2020 WL 364221 (S.D. Cal. Jan. 22, 2020) had reached the
14 conclusion that the gift provision does not apply to services “without analysis,” and noted the “issue is not
15 clear as Robinson seems to assume.” Jd. at 13 n.8. The court further distinguished this case from
16 Robinson because there was no evidence that the named plaintiff would not have subscribed to the service
17 at issue if the required disclosures were provided, whereas that evidence exists here. Jd.
18 Google filed a writ petition on October 4, 2021 that included all of its arguments against Plaintiff's
19 unconditional gift theory and its reading of Mayron.* On July 7, 2022, the Court of Appeal denied the writ
20 On September 21, 2022, the Court issued an order certifying the class in Dutcher and reiterated its
21 views regarding Mayron and Robinson in its discussion of restitution.® Additionally, the Court rejected
22 Google’s contention that “Mayron held that the gift provision ‘creates a penalty,’ which cannot form the
23
24 3 Dutcher plaintiff filed a complaint in June 2020 on behalf of California consumers who paid for an
automatically renewing subscription to YouTube TV, YouTube Music, and YouTube Premium. The
25 Court overruled Google/YouTube’s demurrer on Januat 27, 2021. Order Concerning Def.’s
Demurrer to the Compl., Dutcher v. Google LLC, No. 20-CV-366905 (Jan. 27, 2021).
26 4 Order Concerning: A) Pls’ Mot. for Class Certification; and B) Google’s Moti. to Seal (“Class Cert.
Order”) at 24 (Sun Decl. Exhibit 3).
27 5 See Petition for Writ of Mandate and/or Prohibition; Memorandum of Points and Authorities, Google
LLC v. Superior Court, No. H049451 (Cal. App. Oct. 4, 2021) at 19-21, 27-28.
28 ° Order Concerning Pls.’ Mot. for Class Certification & Related Mots. to Seal, Dutcher v. Google
LLC, No. 20-CV-366905 (Sept. 21, 2022) at 14 & 15 n.10 (Sun Decl. Exhibit 13).
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basis for restitution,” finding that “this is not what Mayron held.” Sun Decl. Exhibit 13 at 15 n.11. The
Court explained that “[a]lthough the Mayron court provided an example of a statutory penalty of $1,000
and explained why standing was not established by either the gift provision or an actual penalty, Mayron
specifically noted that eligibility for a remedy under a statute like the gift provision is “wholly distinct”
from a loss caused by the defendant’s conduct sufficient to establish standing under the UCL.” Jd.
Google filed another writ petition challenging the Dutcher class certification order on November
21, 2022, again arguing that Mayron precludes a class-wide theory of restitution.” That petition was
likewise denied by the Court of Appeal on January 30, 2023.
Ii. LEGAL STANDARD
10 A “class should be decertified ‘only where it is clear there exist changed circumstances making
11 continued class action treatment improper.’”” Green v. Obledo, 29 Cal. 3d 126, 148-49 (1981) (citation
12 omitted). “A party moving for decertification generally has the burden to show that certification is no
13 longer warranted.” Kight, 231 Cal. App. 4th at 126. “Decertification requires new law or newly
14 discovered evidence showing changed circumstances.” Williams v. Superior Court, 221 Cal. App. 4th
15 1353, 1360 (2013) (citation omitted). Courts that decertify a class without changed circumstances commit
16 reversible error. See Green, 29 Cal.3d at 148-49 (“Defendants’ arguments in support of their [] motion
17 were not based on changed circumstances, nor did they adduce new evidence that became available to them
18 only after the merits were decided. It follows that the trial court erred in partially decertifying the class[.]”)
19 Iv. ARGUMENT
20 There are no changed circumstances, new evidence or new law supporting Google’s motion — only
21 re-hashed arguments that should be rejected once and for all.
22 A. The Unconditional Gift Provision Applies to Google Play App Subscriptions.
23 The ARL was enacted to protect consumers and represents a fundamental public policy of
24 California. See § 17600 (“It is the intent of the Legislature to end the practice of ongoing charging of
25
26
27
7 See Petition for Writ of Mandate and/or Prohibition; Memorandum of Points and Authorities,
28 Youtube, LLC v. The Superior Court of Santa Clara County, No. H050570 (Ct. App. Nov. 21, 2022) at
18, 31-33.
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consumer credit or debit cards or third party payment accounts without the consumers' explicit consent for
ongoing shipments of a product or ongoing deliveries of service.”).®
The ARL deems any subscriptions made in violation of the disclosure and affirmative consent
tequirements to be “unconditional gifts.” Specifically:
In any case in which a business sends any goods, wares, merchandise, or
products to a consumer, under a continuous service agreement or automatic
renewal of a purchase, without first obtaining the consumer’s affirmative
consent as described in Section 17602, the goods, wares, merchandise, or
products shall for all purposes be deemed an unconditional gift to the
consumer, who may use or dispose of the same in any manner he or she sees
fit without any obligation whatsoever on the consumer’s part to the business,
including, but not limited to, bearing the cost of, or responsibility for,
shipping any goods, wares, merchandise, or products to the business.
10 § 17603 (emphasis added).
11 Google Play App subscriptions are “goods, wares, merchandise, or products [sent] to a consumer,
12 under a continuous service agreement” that a consumer may “use or dispose of” “without any obligation
13 whatsoever ... including, but not limited to ... shipping” costs. Indeed, Google Play Apps” are the very
14 types of products the “unconditional gift” provision was meant to cover — music, books, periodicals,
15 games, !° and videos.'! Moreover, whether or not section 17603 applies to Google Play Apps is a common
16 question that can be decided for the whole class, not an individual question that justifies decertification.
17
18 8King v. Bumble Trading, Inc., 393 F. Supp. 3d 856, 868 (N.D. Cal. 2019) (ARL represents a fundamental
ublic policy of California); Roz v. Nestle Waters N. Am., Inc., No. 2:16-cv-04418-SVW-JEM, 2017 WL
19 132853, at *8 (C.D. Cal. Jan. 11, 2017) (“intention of [ARL] to protect consumers from automatic renewal
programs that do not provide sufficient protections of notice and consent”); see also Kissel v. Code 42
20 Software, Inc., No. 15-cv-01936-JLS, 2016 WL 7647691, at *4 (C.D. Cal. Apr. 14, 2016) (ARL
enacted specifically to “protect consumers from the ‘oppressive use of superior bargaining power’
21 when entering into subscription or purchasing agreements”) (citation omitted); Brazil v. Dell Inc., 585
F. Supp. 2d 1158, 1166 (N.D. Cal. 2008) (the “[p]rotection of unwary consumers from being duped by
22 unscrupulous sellers is an exigency of the utmost priority in contemporary society”) (quoting Vasquez
v. Superior Court, 4 Cal. 3d 800, 808 (1971)).
23 ° In addition to Google Play Music, Google Play Apps include Books, News, Stadia, and YouTube
TV. See Further Jomt CMC Statement for November 17, 2022 CMC (“Nov. 17, 2022 CMC
24 Statement”) at 4. Plaintiff amended the class definition in this case to only include YouTube TV
subscriptions purchased through a Google Play checkout screen to avoid overlap with Dutcher. See id.
25 '0 Stadia was Google’s online gaming platform, which was discontinued in January 2023.
https://stadia.google.com/gg/, last accessed April 17, 2023 (Sun Decl. Exhibit 4). Google developed
26 and sold a controller specifically for Stadia. https://support.google.com/stadia/answer/9565956?hl=en,
last accessed April 17, 2023 (Sun Decl. Exhibit 5).
27 'l See Decl. of Amit Q. Gressel in Support of Def’s Mot. to Decertify Class (‘“Gressel Decl.”) at 33,
Exhibit 2 at 3.
28 " To the extent Google attempts to raise any other Apps on Reply, Plaintiffs should be allowed to file
a Surreply and/or complete discovery.
5
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1. Google Play App Subscriptions Are Covered Products.
Without any evidence or analysis, Google assumes that the Google Play Apps are “services” not
covered by section 17603. Google is wrong both on the facts and on the law.
Google Play App content is a commodity that exists in physical form, just like the downloads the
Ninth Circuit found to be subject to section 17603 in Johnson, 728 F. App’x at 677 (applying 17603 where
“subscriptions grant users a license to download materials such as exercise files, course slides, and sample
codes, all of which may ostensibly be printed and used as part of the users’ educational training.”).'>
Consumers purchase music, books, periodicals, games, and videos through Google App subscriptions to
“possess and use them” as tangible products, distinct from insurance contracts and credit cards that merely
10 represent parties’ intangible agreements. Cf Haskins v. Symantec Corp., No. 3:13-cv-01834-JST, 2013
11 WL 6234610, at *9 (N.D. Cal. Dec. 2, 2013) (antivirus software was “good” under CLRA because “no
12 matter how the software is delivered, it works a physical change on a physical hard drive” and “possesses
13 corporeal form’); see also Ladore v. Sony Computer Ent. Am., LLC, 75 F. Supp. 3d 1065, 1073-74 (N.D.
14 Cal. 2014) (video game was “good” under CLRA).
15 2. The Plain Language of the Unconditional Gift Provision Includes Google Play Apps.
16 Johnson’s conclusion is consistent with the plain language of the statute. Statutory construction
17 begins with the statute’s plain language. See City of San Jose v. Superior Court, 2 Cal. 5th 608, 616
18 (2017). Because the ARL does not define most of the words in section 17603, the “plain and
19 commonsense meaning,” applies, see id., and courts may refer to the dictionary definition. See Wasatch
20 Prop. Mgmt. v. Degrate 35 Cal. 4th 1111, 1121-22 (2005). “[A] word with a broad meaning or multiple
21 meanings may be used for that very reason--its breadth--to achieve a broad purpose.” City of Cerritos v.
22 State, 239 Cal. App. 4th 1020, 1054-55 (2015) (citation & quotation marks omitted). If “statutory language
23 may reasonably be given more than one interpretation, courts may consider various extrinsic aids, including
24 the purpose of the statute, the evils to be remedied, the legislative history, public policy, and the statutory
25 '3 Mayron only addressed the portion of Johnson on standing, not Johnson’s holding that the
subscriptions were tangible products covered by section 17603. As this Court has already recognized,
26 Mayron specifically stated that “we need not reach the issue of whether the gift provision applies only
to tangible goods and not to a data storage plan like Google Drive.” Class Cert. Order at 13 (citing
27 Mayron, 54 Cal. App. 5th at 576). And Mayron emphasized that “eligibility for a remedy and
standards for causation under § 17200 are ‘wholly distinct.”” Jd. (citing Mayron, 54 Cal. App. Sth at
28 575) (internal citations omitted). Moreover, the Apps here are not a “data storage plan” but include
products like games, songs, movies, television shows, and periodicals.
6
PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO DECERTIFY CLASS — CASE NO. 18CV328915
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scheme encompassing the statute.” Fluor Corp. v. Superior Court, 61 Cal. 4th 1175, 1198 (2015) (citation
& quotation marks omitted).
Goods, wares, merchandise, or products: “Goods” means “something manufactured or produced
for sale.”!4 “Wares” can be both tangible and intangible as “manufactured articles, products of art or craft,
or farm produce” ‘intangible item|[s] (such as a service or ability) that [are] a marketable commodity. vis
“Merchandise” means “the commodities or goods that are bought or sold in business.”'® “Products” are
“something (such as a service) that is marketed or sold as a commodity” or something produced by
“intellectual or physical effort.”'7 Google Play App content (music, books, periodicals, games, and videos)
‘manufactured or produced for sale,” the “product[] of art or craft,” ‘marketable commodity,” a
10 “commodit[y] or good[] bought or sold in business,” something produced by “intellectual or physical
11 effort,” and “something that is marketed or sold as a commodity.” Moreover, Google itself referred to App
12 subscriptions as “products” in court filings. '*
13 Use: “Use” means “to put into action or service: avail oneself of.”!° Google cannot reasonably
14 dispute that consumers “use” App subscriptions and digital content. See Google Play Terms of Service
15 (“Play TOS”), March 15, 2023, at 5, Sun Decl. Exhibit ee (“you will have the non-exclusive right, solely
16 as expressly permitted in these Terms and associated policies, to store, access, view, use, and display copies
17 of the applicable Content on your Devices or as otherwise authorized for your personal, non-commercial
18
'4 Mot. at 4 (citing https://www.merriam-webster.com/dictionary/goods); see also In re O’Connor, 87
19 Cal. App. Sth 90, 104 (2022) (citing Merriam-Webster Online Dictionary for ordinary meaning of
terms). The dictionary definitions referred to in this opposition are found at Sun Decl. Exhibits 6-12.
20
'S Td. (citing https://www.merriam-webster.com/dictionary/ware).
21 '6 7d. (citing https://www.merriam-webster.com/dictionary/merchandise).
'7 Iq. (citing https:/www.merriam-webster.com/dictionary/products); see also https://www.merriam-
22 webster.com/dictionary/produced.
18 See Nov. 17, 2022 CMC Statement at 4 (“all Google products sold through the Google Play Store
23 (including subscriptions such as, but not limited to, Stadia, News, Books, and YouTube TV)”
(emphasis added). Accord Order Concerning: A) Plaintiffs’ Motion for Class Certification; and B)
24 Google’s Motion to Seal (“Class Cert. Order”) at 1-2 (Google Play is the “official software application
or “App” store...allowing consumers to browse and download Android apps published by Google...”
25 and “Google uses Google Play to offer digital products (including, for example, songs, movies,
television shows, and periodicals) through paid subscriptions that are automatically renewed at the end
26 of a definite term for a subsequent term, or that continue until the consumer cancels.”) (emphasis
added).
27 9 https://www.merriam-webster.com/dictionary/use.
20 Prior versions of the Play TOS were submitted with Plaintiffs’ Motion for Class Certification and
28 contain the same quoted text as the current version. See Declaration of Laura L. Ho in support of
Plaintiffs’ Motion for Class Certification, Volume I, Exhibits 10-19.
7
PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO DECERTIFY CLASS — CASE NO. 18CV328915
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use only.”); Play TOS at 1 (“Your use of Google Play and the apps ..., games, movies, books, magazines,
or other digital content or services (referred to as “Content”)”) (emphasis added).”! Even if the content
cannot be retained once the subscription ends, the product is “deemed an unconditional gift” at the point of
violation: when the consumer is charged “under a continuous service agreement or automatic renewal of a
purchase” without Google “first obtaining the consumer’s affirmative consent as described in section
17602.” See § 17603.
Dispose of: To “dispose of” means “to get rid of.”?? Consumers can “get rid of’ App subscriptions
23
by ending their subscription or deleting their Google account.
3. Section 17603 Is Not limited to Tangible, Physical Objects.
10 Google asks the Court to go beyond section 17603’s unambiguous language to read a tangibility
11 requirement that doesn’t exist into the statute. Google’s argument violates the most basic tenets of statutory
12 construction and is inconsistent with the consumer protection intent of the statute.
13 Where the Legislature wants to limit a statute’s coverage to tangible goods it does so explicitly.
14 See, e.g., Cal. Civ. Code §§ 1689.24(c) (““Goods’ means tangible chattels bought for use primarily for
15 personal, family, or household purposes ...”), added in 1989; 1689.5(c) (same for home solicitation
16 contracts), added in 1971; 1761(a) (same under CLRA), added in 1970; 1802.1 (same for retail installment
17 sales), added in 1959. Where the legislature imposed a requirement in one context, but did not do so in
18 another, “it is not a judicial function to rewrite the statute by inserting such a requirement.” Moores v. Bd.
19 of Sup’rs of Mendocino Cnty., 122 Cal. App. 4th 883, 891 (2004) (citing Stop Youth Addiction, Inc. v.
20 Lucky Stores, Inc., 17 Cal. 4th 553, 573 (1998)); accord City of Ontario v. Superior Court, 12 Cal. App. 4th
21 894, 902 (1993) (“We must assume that the Legislature knew how to create an exception if it wished to do
22 so....”). The Legislature is presumed to be aware of these other statutes, all written before the ARL was
23 enacted in 2010, see People v. Davis, 126 Cal. App. 4th 1416, 1427 (2005), and the fact that it did not
24
21 See also id. at 3 (“Your contract for the purchase and use of Content is completed ...”) (emphasis
25 added); id. (“Google may allow you to download, view or use Content free of charge on Google Play.”)
(emphasis added).
26 22 https://www.merriam-webster.com/dictionary/dispose (entry for “dispose of”).
3 Other California statutes confirm that intangible products can be “disposed of.” Financial Code section
27 18420(1) requires a conservator to “dispose of ... any or all the assets and property ... tangible and
intangible, of any nature” upon taking possession of a company. Another code section governs contracts
28 whereby minors agree to “sell, lease, license or otherwise dispose of” various personal intellectual
properties, “either tangible or intangible.” See Cal. Fam. Code § 6750(a)(2).
8
PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO DECERTIFY CLASS — CASE NO. 18CV328915
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limit 17603’s “goods, wares, merchandise, or products” to tangible items means a court cannot read that
limitation into the phrase.
Preview
18C0V328915 Santa Clara — Civil R, Aragon Electronically Filed Laura L. Ho (SBN 173179) by Superior Court of CA, Tho@gbdhlegal.com James Kan (SBN 240749) County of Santa Clara, jkan@gbdhlegal.com on 4/26/2023 5:19 PM Katharine L. Fisher (SBN 305413) Reviewed By: R. Aragon kfisher@gbdhlegal.com Case #18CV328915 Mengfei Sun (SBN 328829) Envelope: 11817245 msun@gbdhlegal.com GOLDSTEIN, BORGEN, DARDARIAN & HO 155 Grand Avenue, Suite 900 Oakland, CA 94612 Tel: (510) 763-9800 Fax: (510) 835-1417 Julian Hammond (SBN 268489) jhammond@hammondlawpe.com Ari Cherniak (SBN 290071) acherniak@hammondlawpc.com 10 Polina Brandler (SBN 269086) pbrandler@hammondlawpc.com 11 HAMMONDLAW, PC 11780 W Sample Road, Suite 103 12 Coral Springs, FL 33065 Tel: (310) 601-6766 13 Fax: (310) 295-2385 14 Attorneys for Plaintiffs and the Certified Class 15 SUPERIOR COURT OF THE STATE OF CALIFORNIA 16 FOR THE COUNTY OF SANTA CLARA 17 18 ANGEL CHAVEZ, NICHOLAS JOEL LUSKIN, and] Case No. 18CV328915 19 SALVADOR DE LA O, individually and on behalf of all others similarly situated, PLAINTIFFS’ OPPOSITION TO 20 DEFENDANT’S MOTION TO DECERTIFY 21 Plaintiffs, CLASS 22 VS. Date: June 1, 2023 Time: 1:30 p.m. 23 GOOGLE, LLC., a California Limited Liability Dept: 1 Company, Before: Hon. Sunil R. Kulkarni 24 25 Defendant. Trial Date: None Set 26 27 28 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO DECERTIFY CLASS — CASE NO. 18CV328915 870906.19 TABLE OF CONTENTS Page INTRODUCTION I RELEVANT BACKGROUND.............. TL. LEGAL STANDARD IV. ARGUMENT A The Unconditional Gift Provision Applies to Google Play App Subscriptions. ........... 1 Google Play App Subscriptions Are Covered Products. ...........:.:sssssesseseseeeeneerees 6 2. The Plain Language of the Unconditional Gift Provision Includes Google Play Apps. ..........+ 10 Section 17603 Is Not limited to Tangible, Physical Objects. 11 Shipping Costs Are Only One Example of An Obligation A Consumer Does 12 Not Have Towards Google. 13 2 Services Are Not Omitted from Section 17603 10 14 B Plaintiff's Full Refund Theory Is Restitutionary. ............sssesessesesesseeseeseseeeeasensneeeeneeeeeeee 11 15 1 Class Members Have an Ownership and Vested Interest in Monies Google Unlawfully Charged Them, and the Return of that Money is Not a 16 Nonrestitutionary “Pemalty.” .......cececeeeecseseseesesesseseseeseaeseeseeesesneeteneessesuenseneeeaeeee 12 17 Plaintiff and the Class Have an “Ownership Interest. 12 18 Plaintiff and the Class Have a “Vested Interest.” .........cscseeeeeeseeeeeesees 13 19 Mayron Does Not Depart from the California Supreme Court’s Jurisprudence. 1S 20 Entitlement to a Full Refund Under the Gift Theory Does Not Require 21 Valuation of a Supposed Benefit. 17 22 Vv. CONCLUSION 20 23 24 25 26 27 28 ii PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO DECERTIFY CLASS — CASE NO. 18CV328915 870906.19 TABLE OF AUTHORITIES Page(s) State Cases Agnew vy. State Bd. of Equalization, 21 Cal. 4th 310 (1999) 10 City of Cerritos v. State, 239 Cal. App. 4th 1020 (2015) City of Ontario v. Superior Court, 12 Cal. App. 4th 894 (1993)... City of San Jose v. Superior Court, 10 2 Cal. 5th 608 (2017) 11 Colgan v. Leatherman Tool Grp.,_Inc., 12 135 Cal. App. 4th 663 (2006)... 15 13 Cortez v. Purolator Air Filtration Prod. Co., 23 Cal. 4th 163 (2000) 12, 13, 14, 16 14 Dudek v. Dudek, 15 34 Cal. App. 5th 154 (2019) 14 16 Fluor Corp. v. Superior Court, 17 61 Cal. 4th 1175 (2015) 18 Google LLC v. Superior Court, No. H049451 (Cal. App. Oct. 4, 2021) 19 Green v. Obledo, 20 29 Cal. 3d 126 (1981) 21 People ex rel. Harris v. Aguayo, 22 11 Cal. App. 5th 1150 (2017) 14 23 People ex rel. Harris v. Sarpas, 225 Cal. App. 4th 1539 (2014) 13 24 Jiagbogu v. Mercedes-Benz USA, 25 118 Cal. App. 4th 1235 (2004) 20 26 People ex rel. Kennedy v. Beaumont Inv., Ltd. 27 111 Cal. App. 4th 102 (2003)... 15 28 Kight v. CashCall, Inc., 231 Cal. App. 4th 112 (2014) 1,4 lil PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO DECERTIFY CLASS — CASE NO. 18CV328915 870906.19 Korea Supply Co. v. Lockheed Martin Corp., 29 Cal. 4th 1134 (2003) passim Kwikset Corp. v. Superior Court, 51 Cal. 4th 310 (2011) 19 Lee v. Luxottica Retail North America, Inc., 65 Cal. App. 5th 793 (2021) 16 Lungren v. Deukmejian, AS Cal. 3d 727 (1988) ...seeseeeeee Major v. Silna, 134 Cal. App. 4th 1485 (2005) Malek v. Blue Cross of Cal., 10 121 Cal. App. 4th 44 (2004)... 14 11 Mayron y. Google LLC, 54 Cal. App. 5th 566 (2020) passim 12 Moores v. Bd. of Sup’rs of Mendocino Cnty. 13 122 Cal. App. 4th 883 (2004) 14 Niedermeier v. FCA US LLC, 15 56 Cal. App. 5th 1052 (2020) 20 16 In re O’Connor, 87 Cal. App. 5th 90 (2022) 17 People v. Davis, 18 126 Cal. App. 4th 1416 (2005) 19 Pineda v. Bank of Am., N.A., 50 Cal. 4th 1389 (2010) 13, 16 20 21 Reno v. Baird, 18 Cal. 4th 640 (1998) 10 22 Shersher v. Superior Court, 23 154 Cal. App. 4th 1498 (2007) 13, 15, 16 24 In re Steroid Hormone Prod. Cases, 181 Cal. App. 4th 145 (2010)... eee 2s 25 In re Tobacco Cases II, 26 240 Cal. App. 4th 779 (2015) 2, 17, 20 27 In Re Tobacco II Cases, 28 46 Cal. 4th 298 (2009) 11 iv PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO DECERTIFY CLASS — CASE NO. 18CV328915 870906.19 Troyk v. Farmers Grp., Inc., 171 Cal. App. 4th 1305 (2009) 13 In re Vioxx Class Cases. 180 Cal. App. 4th 116 (2009) 2, 11, 12, 15 Wasatch Prop. Mgmt. v. Degrate 35 Cal. 4th 1111 (2005) Williams v. Superior Court, 221 Cal. App. 4th 1353 (2013) Youtube, LLC v. The Superior Court of Santa Clara County, No. H050570 (Ct. App. Nov. 21, 2022) Federal Cases 10 Allen v. Hyland’s Inc. 11 300 F.R.D. 643 (2014) 19 12 Allen v. Similasan Corp., 306 F.R.D. 635 (S.D. Cal. 2015) 19 13 Barrera v. Pharmavite, LLC, 14 No. 2:11-cv-04153-CAS-AGR, 2016 WL 11758373 (C.D. Cal. June 2, 2016) 19 15 Brazil v. Dell Inc., 16 585F. Supp. 2d 1158 (N.D. Cal. 2008) 17 Caldera v. JM. Smucker Co. No. 2:12-cv-04936-GHK-VBK, 2014 WL 1477400 (C.D. Cal. Apr. 15, 2014). 20 18 Capaci v. Sports Research Corp., 19 No. 2:19-cv-03440-FMO-FFM, 2022 WL 1133818 (C.D. Cal. Apr. 14, 2022) 19 20 Challenge Printing Co., Inc. v. Electronics a cece Inc., 21 500F. Supp. 3d 952 (N.D. Cal. 2020).... 22 Chowning v. Kohl’s Dep’t Stores, Inc., No. 2:15-cv-08673-RGK-SP, 2016 WL 1072129 (C.D. Cal. Mar. 15, 2016) 20 23 Digital Ally, Inc. v. Z3 Tech., LLC, 24 No. 2:09-cv-02292-KGS, 2010 WL 3974674 (D. Kan. Sept. 30, 2010) 25 In re Facebook, Inc., PPC Advert. Litig., 282 F.R.D. 446 (N.D. Cal. 2012) 20 26 Fraley v. Facebook, Inc., 830 F. Supp. 2d 785 (2011) 17 28 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO DECERTIFY CLASS — CASE NO. 18CV328915 870906.19 Gross v. Symantec Corp., No. 3:12-cv-00154-CRB, 2012 WL 3116158 (N.D. Cal. July 31, 2012) Haskins v. Symantec Corp., No. 3:13-cv-01834-JST, 2013 WL 6234610 (N.D. Cal. Dec. 2, 2013) Johnson v. Pluralsight, LLC, 728 F. App’x 674 (9th Cir. 2018) 1,6 In re JUUL Labs, Inc., Mktg. Sales Pracs. & Prods. Liab 609 F. Supp. 3d 942 (N.D. Cal. 2022)... 18 King v. Bumble Trading, Inc., 393 F. Supp. 3d 856 (N.D. Cal. 2019) Kissel v. Code 42 Software, Inc., 10 No. 15-cv-01936-JLS, 2016 WL 7647691 (C.D. Cal. Apr. 14, 2016)... 11 Korolshteyn v. Costco Wholesale Corp., No. 3:15-cv-00709-CAB-RBB, 2017 WL 1020391 (S.D. Cal. Mar. 16, 2017) 19 12 Krueger v. Wyeth, 13 396 F. Supp. 3d 931 (S.D. Cal. 2019) 17, 19 14 Ladore v. Sony Computer Ent. Am., LLC, 15 75 F. Supp. 3d 1065 (N.D. Cal. 2014) 16 Lambert v. Nutraceutical Corp., No. 2:13-cv-05942-AB-E, 2020 WL 12012559 (C.D. Cal. Jan. 8, 2020) 19 17 Lopez v. Stages of Beauty, LLC, 18 307 F. Supp. 3d 1058 (2018) 17 19 Makaeff v. Trump Univ., 309 F.R.D. 631 (S.D. Cal. 2015) 19 20 21 McCrary v. Elations Co. LLC, No. 5:13-cv-00242-JGB-SP, 2014 WL 12589137 (C.D. Cal. Dec. 2, 2014) 19 22 In re Morning Song Bird Food Litig., 23 320 F.R.D. 540 (S.D. Cal. 2017) 19 24 Omidi v. Wal-Mart Stores, Inc., No. 3:14-cv-00857-JAH-BLM, 2020 WL 1332594 (S.D. Cal. Mar. 23, 2020)... 13 25 Pepper v. Charitable Res. Found., Inc., 26 No. 2:14-cv-02573-SVW-FFM, 2014 WL 12961327 (C.D. Cal. Oct. 14, 2014) 17 27 In re POM Wonderful LLC, 28 No. 2:10-ml-02199-DDP-RZ, 2014 WL 1225184 (C.D. Cal. Mar. 25, 2014) 20 vi PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO DECERTIFY CLASS — CASE NO. 18CV328915 870906.19 Pulaski & Middleman, LLC v. Google, Inc., 802 F.3d 979 (9th Cir. 2015) 2, 17,18 Red v. Kraft Foods, Inc., No. 2:10-cv-01028-GW-AGR, 2012 WL 8019257 (C.D. Cal. Apr. 12, 2012) 20 Rikos v. Procter & Gamble Co., 799 F.3d 497 (6th Cir. 2015) 19 Robinson v. OnStar, LLC, No. 3:15-cv-01731-TWR-DEB, 2020 WL 364221 (S.D. Cal. Jan. 22, 2020) 3, 11,20 Roz v. Nestle Waters N. Am., Inc., No. 2:16-cv-04418-SVW-JEM, 2017 WL 132853 (C.D. Cal. Jan. 11, 2017) 5, 10 RRX Indus., Inc. v. Lab-Con, Inc., 10 772 F.2d 543 (9th Cir. 1985)... 11 Snow v. Align Tech., Inc., No. 3:21-cv-03269-VC 2022, 2022 WL 1396223 (N.D. Cal. May 4, 2022) 13 12 Spann v. J.C. Penny Corp. (Spann 1), 13 No. 8:12-cv-00215-FMO-KES, 2015 WL 1526559 (C.D. Cal. Mar. 23, 2015) 13 14 Stathakos v. Columbia Sportswear Co., 15 No. 4:15-cv-04543-YGR, 2017 WL 1957063 (N.D. Cal. May 11, 2017) 20 16 United States v. Allison, 587 F. Supp. 3d 1015 (E.D. Cal. 2022) 14, 19 17 Waldrup v. Countrywide Fin. Corp., 18 No. 2:13-cv-08833-CAS-AGR, 2018 WL 799156 (C.D. Cal. Feb. 6, 2018) 19 19 Woodard v. Labrada, No. 5:16-cv-00189-JGB-SP, 2021 WL 4499184 (C.D. Cal. Aug. 31, 2021). 19 20 21 Yamagata v. Reckitt Benckiser LLC, 445 F. Supp. 3d 28 (N.D. Cal. 2020) 19 22 State Statutes 23 Cal. Unfair Competition Law, Cal. Bus. & Prof. Code 24 §§ 17200 et SOQ. .oeseeseessesssescsessesesrssesesnensavscnesreneaesneneavenenesesneatsnsnsacsensansasacateneacanensateneacarenentens passim 25 26 27 28 vii PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO DECERTIFY CLASS — CASE NO. 18CV328915 870906.19 Cal. Automatic Renewal Law, Cal. Bus. & Prof. Code §§ 17600 ef seg. 1... passim Cal. Civ. Code § 1146 19 § 1689.24(c) § 3344 17 Cal. Com. Code § 2105(1) Cal. Fam. Code § 6750(a)(2) Cal. Fin. Code § 18420(1) 10 Cal. Lab. Code 11 § 203 16 12 Cal. Penal Code 13 OS ee 17 14 Other Authorities 15 Black’s Law Dictionary (11th ed. 2019) 11 16 Merriam-Webster Dict. Online (2023) 17 Unif. Com. Code § 2-105(1) 18 19 20 21 22 23 24 25 26 27 28 viii PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO DECERTIFY CLASS — CASE NO. 18CV328915 870906.19 I INTRODUCTION This Court has already rejected Defendant’s arguments at least three times — in the Demurrer and the Class Certification Order in this case, and the Class Certification Order in the parallel case of Dutcher v. Google LLC, No. 20-CV-366905. “A motion for decertification is not an opportunity for a disgruntled class defendant to seek a do-over of its previously unsuccessful opposition to certification.” Kight v. CashCall, Inc., 231 Cal. App. 4th 112, 125-26 (2014). Thus, “‘[i]n the absence of materially changed or clarified circumstances[,] ... courts should not condone a series of rearguments on the class issues[.]”” Jd. (citations and quotation marks omitted). On the merits, Defendant’s recycled arguments fare no better. First, Defendant’s contention that 10 Google Play Apps are not subject to the unconditional gift provision of the Automatic Renewal Law 11 (“ARL”), Cal. Bus. & Prof. Code §§ 17600 ef seq., rests on its faulty assumption that they are a “service” 12 and “services” are not covered by section 17603.! Def’s Mot. to Decertify (“Mot.”) at 3-5. This Court has 13 already rejected those assumptions and should do so again. See Order after Hearing on February 1, 2019 14 (“Demurrer Order”) at 14 and section IV.A, infra. Moreover, the music, books, periodicals, games, and 15 videos at issue are just like the materials the Ninth Circuit found to be subject to section 17603 in Johnson 16 v. Pluralsight, LLC, 728 F. App’x 674, 677 (9th Cir. 2018) (applying 17603 where “subscriptions grant 17 users a license to download materials such as exercise files, course slides, and sample codes, all of which 18 may ostensibly be printed and used as part of the users’ educational training”). 19 Next, Defendant is wrong that “the gift provision does not provide a basis for awarding a full 20 refund as restitution because it does not create a vested interest in money or property,” Mot. at 1, 6-7. 21 There is no question that Plaintiff and class members have an ownership interest in the money they paid to 22 Google, or that section 17603 vests the full amount of monies paid as Plaintiff and class members’ property 23 where money obtained for an unconditional gift “can be likened to ‘property’ converted by” a defendant 24 that, in equity, “can be the subject of a constructive trust.” See section IV.B.1., infra. 25 Finally, Defendant contends that Plaintiff “must account for the benefit each class member 26 received,” Mot. at 8, 10, to be able to obtain restitution. But, that is not the law. The price differential 27 ' Code citations are to California Business and Professions Code unless specifically noted. 28 ? Exhibit 2 to Decl. of Mengfei Sun in support of Pl’s Opp’n to Def’s Mot. to Decertify Class (“Sun Decl.”), submitted herewith. 1 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO DECERTIFY CLASS — CASE NO. 18CV328915 870906.19 model is not the exclusive measure of restitution. See In re Tobacco Cases II, 240 Cal. App. 4th 779, 792 (2015) (“We agree that Vioxx does not purport to set forth the exclusive measure of restitution potentially available in a UCL case.”) There is no need to account for any supposed “benefit” when charging the consumer for the product was unlawful in and of itself. See, e.g., In re Steroid Hormone Prod. Cases, 181 Cal. App. 4th 145, 160 (2010) (valuation not at issue because the consumers alleged that defendant sold a product that was unlawful to sell, such that they were entitled to a full refund no matter any supposed value retained). Where “a defendant has wrongfully obtained a plaintiff’s property, ‘the measure of recovery for the benefit received ... is the value of the property at the time of its improper acquisition.” Pulaski & Middleman, LLC vy. Google, Inc., 802 F.3d 979, 988-89 (9th Cir. 2015) (citation omitted); see section 10 IV.B.2, infra. 11 Accordingly, Plaintiff’s full refund measure of restitution is appropriate, and Defendant’s Motion to 12 Decertify the Class should be denied in its entirety. 13 Il. RELEVANT BACKGROUND 14 Plaintiffs filed this action in May 2018 to challenge Google’s practice of offering automatically 15 renewing in-app subscriptions through its Google Play Store without fully disclosing the material terms 16 required by the ARL and obtaining consumers’ affirmative consent before charging them for the 17 subscriptions. On February 1, 2019, the Court overruled Google’s demurrer. Relevant to the instant 18 motion, this Court concluded that “section 17603 applies to digital subscriptions.” Demurrer Order at 14. 19 The Court found that references to shipping costs “do not ultimately show that the Legislature intended to 20 exclude digital subscriptions from the protections of 17603,” particularly where it uses the broader term 21 “sends” to describe how products within its ambit reach consumers. /d. at 12 (emphasis in original). The 22 Legislature “would have used more precise language to exclude [digital subscriptions] from the effects of 23 section 17603 if it meant to,” and this conclusion is consistent with a “liberal reading of the Automatic 24 Renewal Law to effectuate its purpose.” /d. “There is no obvious reason why the Legislature would 25 declare physical products sent in violation of the ARL ‘an unconditional gift to the consumer’ while 26 allowing businesses to impose obligations on consumers who receive digital subscriptions in violation of 27 the law.” Jd. at 12-13. Shipping costs are “expressly only examples of the obligations that the statute 28 addresses,” and the statute “explicitly and broadly encompasses ‘any obligation whatsoever by the 2 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO DECERTIFY CLASS — CASE NO. 18CV328915 870906.19 consumer.” Jd. at 13. “[O]ne such obligation is the recurring charge to a consumer’s credit card itself — the main problem that the ARL is intended to address.” Id. “Google’s digital delivery of music to consumers falls within section 17603” because the language of the statute “does not suggest a distinction between different methods of transmission of digital goods.” Id. at 13-14.3 On August 5, 2021, the Court certified the class.* Relevant to the instant motion, the Court already rejected Defendant’s argument that Mayron v. Google LLC, 54 Cal. App. 5th 566 (2020) forecloses Plaintiffs’ theory that restitution should be the full amount paid for the subscriptions pursuant to section 17603’s “unconditional gift provision.” Class Cert. Order at 13. The Court explained that “Mayron addressed the gift provision solely in the context of standing” and emphasized that “eligibility for a remedy 10 and standards for causation under § 17200 are ‘wholly distinct” /d. (internal citations omitted) (further 11 noting Mayron had expressly “not reach[ed]the issue of whether the gift provision applies only to tangible 12 goods and not to a data storage plan like Google Drive”). Further, the court found that Robinson v. OnStar, 13 LLC, No. 3:15-cv-0173 1-TWR-DEB, 2020 WL 364221 (S.D. Cal. Jan. 22, 2020) had reached the 14 conclusion that the gift provision does not apply to services “without analysis,” and noted the “issue is not 15 clear as Robinson seems to assume.” Jd. at 13 n.8. The court further distinguished this case from 16 Robinson because there was no evidence that the named plaintiff would not have subscribed to the service 17 at issue if the required disclosures were provided, whereas that evidence exists here. Jd. 18 Google filed a writ petition on October 4, 2021 that included all of its arguments against Plaintiff's 19 unconditional gift theory and its reading of Mayron.* On July 7, 2022, the Court of Appeal denied the writ 20 On September 21, 2022, the Court issued an order certifying the class in Dutcher and reiterated its 21 views regarding Mayron and Robinson in its discussion of restitution.® Additionally, the Court rejected 22 Google’s contention that “Mayron held that the gift provision ‘creates a penalty,’ which cannot form the 23 24 3 Dutcher plaintiff filed a complaint in June 2020 on behalf of California consumers who paid for an automatically renewing subscription to YouTube TV, YouTube Music, and YouTube Premium. The 25 Court overruled Google/YouTube’s demurrer on Januat 27, 2021. Order Concerning Def.’s Demurrer to the Compl., Dutcher v. Google LLC, No. 20-CV-366905 (Jan. 27, 2021). 26 4 Order Concerning: A) Pls’ Mot. for Class Certification; and B) Google’s Moti. to Seal (“Class Cert. Order”) at 24 (Sun Decl. Exhibit 3). 27 5 See Petition for Writ of Mandate and/or Prohibition; Memorandum of Points and Authorities, Google LLC v. Superior Court, No. H049451 (Cal. App. Oct. 4, 2021) at 19-21, 27-28. 28 ° Order Concerning Pls.’ Mot. for Class Certification & Related Mots. to Seal, Dutcher v. Google LLC, No. 20-CV-366905 (Sept. 21, 2022) at 14 & 15 n.10 (Sun Decl. Exhibit 13). 3 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO DECERTIFY CLASS — CASE NO. 18CV328915 870906.19 basis for restitution,” finding that “this is not what Mayron held.” Sun Decl. Exhibit 13 at 15 n.11. The Court explained that “[a]lthough the Mayron court provided an example of a statutory penalty of $1,000 and explained why standing was not established by either the gift provision or an actual penalty, Mayron specifically noted that eligibility for a remedy under a statute like the gift provision is “wholly distinct” from a loss caused by the defendant’s conduct sufficient to establish standing under the UCL.” Jd. Google filed another writ petition challenging the Dutcher class certification order on November 21, 2022, again arguing that Mayron precludes a class-wide theory of restitution.” That petition was likewise denied by the Court of Appeal on January 30, 2023. Ii. LEGAL STANDARD 10 A “class should be decertified ‘only where it is clear there exist changed circumstances making 11 continued class action treatment improper.’”” Green v. Obledo, 29 Cal. 3d 126, 148-49 (1981) (citation 12 omitted). “A party moving for decertification generally has the burden to show that certification is no 13 longer warranted.” Kight, 231 Cal. App. 4th at 126. “Decertification requires new law or newly 14 discovered evidence showing changed circumstances.” Williams v. Superior Court, 221 Cal. App. 4th 15 1353, 1360 (2013) (citation omitted). Courts that decertify a class without changed circumstances commit 16 reversible error. See Green, 29 Cal.3d at 148-49 (“Defendants’ arguments in support of their [] motion 17 were not based on changed circumstances, nor did they adduce new evidence that became available to them 18 only after the merits were decided. It follows that the trial court erred in partially decertifying the class[.]”) 19 Iv. ARGUMENT 20 There are no changed circumstances, new evidence or new law supporting Google’s motion — only 21 re-hashed arguments that should be rejected once and for all. 22 A. The Unconditional Gift Provision Applies to Google Play App Subscriptions. 23 The ARL was enacted to protect consumers and represents a fundamental public policy of 24 California. See § 17600 (“It is the intent of the Legislature to end the practice of ongoing charging of 25 26 27 7 See Petition for Writ of Mandate and/or Prohibition; Memorandum of Points and Authorities, 28 Youtube, LLC v. The Superior Court of Santa Clara County, No. H050570 (Ct. App. Nov. 21, 2022) at 18, 31-33. 4 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO DECERTIFY CLASS — CASE NO. 18CV328915 870906.19 consumer credit or debit cards or third party payment accounts without the consumers' explicit consent for ongoing shipments of a product or ongoing deliveries of service.”).® The ARL deems any subscriptions made in violation of the disclosure and affirmative consent tequirements to be “unconditional gifts.” Specifically: In any case in which a business sends any goods, wares, merchandise, or products to a consumer, under a continuous service agreement or automatic renewal of a purchase, without first obtaining the consumer’s affirmative consent as described in Section 17602, the goods, wares, merchandise, or products shall for all purposes be deemed an unconditional gift to the consumer, who may use or dispose of the same in any manner he or she sees fit without any obligation whatsoever on the consumer’s part to the business, including, but not limited to, bearing the cost of, or responsibility for, shipping any goods, wares, merchandise, or products to the business. 10 § 17603 (emphasis added). 11 Google Play App subscriptions are “goods, wares, merchandise, or products [sent] to a consumer, 12 under a continuous service agreement” that a consumer may “use or dispose of” “without any obligation 13 whatsoever ... including, but not limited to ... shipping” costs. Indeed, Google Play Apps” are the very 14 types of products the “unconditional gift” provision was meant to cover — music, books, periodicals, 15 games, !° and videos.'! Moreover, whether or not section 17603 applies to Google Play Apps is a common 16 question that can be decided for the whole class, not an individual question that justifies decertification. 17 18 8King v. Bumble Trading, Inc., 393 F. Supp. 3d 856, 868 (N.D. Cal. 2019) (ARL represents a fundamental ublic policy of California); Roz v. Nestle Waters N. Am., Inc., No. 2:16-cv-04418-SVW-JEM, 2017 WL 19 132853, at *8 (C.D. Cal. Jan. 11, 2017) (“intention of [ARL] to protect consumers from automatic renewal programs that do not provide sufficient protections of notice and consent”); see also Kissel v. Code 42 20 Software, Inc., No. 15-cv-01936-JLS, 2016 WL 7647691, at *4 (C.D. Cal. Apr. 14, 2016) (ARL enacted specifically to “protect consumers from the ‘oppressive use of superior bargaining power’ 21 when entering into subscription or purchasing agreements”) (citation omitted); Brazil v. Dell Inc., 585 F. Supp. 2d 1158, 1166 (N.D. Cal. 2008) (the “[p]rotection of unwary consumers from being duped by 22 unscrupulous sellers is an exigency of the utmost priority in contemporary society”) (quoting Vasquez v. Superior Court, 4 Cal. 3d 800, 808 (1971)). 23 ° In addition to Google Play Music, Google Play Apps include Books, News, Stadia, and YouTube TV. See Further Jomt CMC Statement for November 17, 2022 CMC (“Nov. 17, 2022 CMC 24 Statement”) at 4. Plaintiff amended the class definition in this case to only include YouTube TV subscriptions purchased through a Google Play checkout screen to avoid overlap with Dutcher. See id. 25 '0 Stadia was Google’s online gaming platform, which was discontinued in January 2023. https://stadia.google.com/gg/, last accessed April 17, 2023 (Sun Decl. Exhibit 4). Google developed 26 and sold a controller specifically for Stadia. https://support.google.com/stadia/answer/9565956?hl=en, last accessed April 17, 2023 (Sun Decl. Exhibit 5). 27 'l See Decl. of Amit Q. Gressel in Support of Def’s Mot. to Decertify Class (‘“Gressel Decl.”) at 33, Exhibit 2 at 3. 28 " To the extent Google attempts to raise any other Apps on Reply, Plaintiffs should be allowed to file a Surreply and/or complete discovery. 5 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO DECERTIFY CLASS — CASE NO. 18CV328915 870906.19 1. Google Play App Subscriptions Are Covered Products. Without any evidence or analysis, Google assumes that the Google Play Apps are “services” not covered by section 17603. Google is wrong both on the facts and on the law. Google Play App content is a commodity that exists in physical form, just like the downloads the Ninth Circuit found to be subject to section 17603 in Johnson, 728 F. App’x at 677 (applying 17603 where “subscriptions grant users a license to download materials such as exercise files, course slides, and sample codes, all of which may ostensibly be printed and used as part of the users’ educational training.”).'> Consumers purchase music, books, periodicals, games, and videos through Google App subscriptions to “possess and use them” as tangible products, distinct from insurance contracts and credit cards that merely 10 represent parties’ intangible agreements. Cf Haskins v. Symantec Corp., No. 3:13-cv-01834-JST, 2013 11 WL 6234610, at *9 (N.D. Cal. Dec. 2, 2013) (antivirus software was “good” under CLRA because “no 12 matter how the software is delivered, it works a physical change on a physical hard drive” and “possesses 13 corporeal form’); see also Ladore v. Sony Computer Ent. Am., LLC, 75 F. Supp. 3d 1065, 1073-74 (N.D. 14 Cal. 2014) (video game was “good” under CLRA). 15 2. The Plain Language of the Unconditional Gift Provision Includes Google Play Apps. 16 Johnson’s conclusion is consistent with the plain language of the statute. Statutory construction 17 begins with the statute’s plain language. See City of San Jose v. Superior Court, 2 Cal. 5th 608, 616 18 (2017). Because the ARL does not define most of the words in section 17603, the “plain and 19 commonsense meaning,” applies, see id., and courts may refer to the dictionary definition. See Wasatch 20 Prop. Mgmt. v. Degrate 35 Cal. 4th 1111, 1121-22 (2005). “[A] word with a broad meaning or multiple 21 meanings may be used for that very reason--its breadth--to achieve a broad purpose.” City of Cerritos v. 22 State, 239 Cal. App. 4th 1020, 1054-55 (2015) (citation & quotation marks omitted). If “statutory language 23 may reasonably be given more than one interpretation, courts may consider various extrinsic aids, including 24 the purpose of the statute, the evils to be remedied, the legislative history, public policy, and the statutory 25 '3 Mayron only addressed the portion of Johnson on standing, not Johnson’s holding that the subscriptions were tangible products covered by section 17603. As this Court has already recognized, 26 Mayron specifically stated that “we need not reach the issue of whether the gift provision applies only to tangible goods and not to a data storage plan like Google Drive.” Class Cert. Order at 13 (citing 27 Mayron, 54 Cal. App. 5th at 576). And Mayron emphasized that “eligibility for a remedy and standards for causation under § 17200 are ‘wholly distinct.”” Jd. (citing Mayron, 54 Cal. App. Sth at 28 575) (internal citations omitted). Moreover, the Apps here are not a “data storage plan” but include products like games, songs, movies, television shows, and periodicals. 6 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO DECERTIFY CLASS — CASE NO. 18CV328915 870906.19 scheme encompassing the statute.” Fluor Corp. v. Superior Court, 61 Cal. 4th 1175, 1198 (2015) (citation & quotation marks omitted). Goods, wares, merchandise, or products: “Goods” means “something manufactured or produced for sale.”!4 “Wares” can be both tangible and intangible as “manufactured articles, products of art or craft, or farm produce” ‘intangible item|[s] (such as a service or ability) that [are] a marketable commodity. vis “Merchandise” means “the commodities or goods that are bought or sold in business.”'® “Products” are “something (such as a service) that is marketed or sold as a commodity” or something produced by “intellectual or physical effort.”'7 Google Play App content (music, books, periodicals, games, and videos) ‘manufactured or produced for sale,” the “product[] of art or craft,” ‘marketable commodity,” a 10 “commodit[y] or good[] bought or sold in business,” something produced by “intellectual or physical 11 effort,” and “something that is marketed or sold as a commodity.” Moreover, Google itself referred to App 12 subscriptions as “products” in court filings. '* 13 Use: “Use” means “to put into action or service: avail oneself of.”!° Google cannot reasonably 14 dispute that consumers “use” App subscriptions and digital content. See Google Play Terms of Service 15 (“Play TOS”), March 15, 2023, at 5, Sun Decl. Exhibit ee (“you will have the non-exclusive right, solely 16 as expressly permitted in these Terms and associated policies, to store, access, view, use, and display copies 17 of the applicable Content on your Devices or as otherwise authorized for your personal, non-commercial 18 '4 Mot. at 4 (citing https://www.merriam-webster.com/dictionary/goods); see also In re O’Connor, 87 19 Cal. App. Sth 90, 104 (2022) (citing Merriam-Webster Online Dictionary for ordinary meaning of terms). The dictionary definitions referred to in this opposition are found at Sun Decl. Exhibits 6-12. 20 'S Td. (citing https://www.merriam-webster.com/dictionary/ware). 21 '6 7d. (citing https://www.merriam-webster.com/dictionary/merchandise). '7 Iq. (citing https:/www.merriam-webster.com/dictionary/products); see also https://www.merriam- 22 webster.com/dictionary/produced. 18 See Nov. 17, 2022 CMC Statement at 4 (“all Google products sold through the Google Play Store 23 (including subscriptions such as, but not limited to, Stadia, News, Books, and YouTube TV)” (emphasis added). Accord Order Concerning: A) Plaintiffs’ Motion for Class Certification; and B) 24 Google’s Motion to Seal (“Class Cert. Order”) at 1-2 (Google Play is the “official software application or “App” store...allowing consumers to browse and download Android apps published by Google...” 25 and “Google uses Google Play to offer digital products (including, for example, songs, movies, television shows, and periodicals) through paid subscriptions that are automatically renewed at the end 26 of a definite term for a subsequent term, or that continue until the consumer cancels.”) (emphasis added). 27 9 https://www.merriam-webster.com/dictionary/use. 20 Prior versions of the Play TOS were submitted with Plaintiffs’ Motion for Class Certification and 28 contain the same quoted text as the current version. See Declaration of Laura L. Ho in support of Plaintiffs’ Motion for Class Certification, Volume I, Exhibits 10-19. 7 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO DECERTIFY CLASS — CASE NO. 18CV328915 870906.19 use only.”); Play TOS at 1 (“Your use of Google Play and the apps ..., games, movies, books, magazines, or other digital content or services (referred to as “Content”)”) (emphasis added).”! Even if the content cannot be retained once the subscription ends, the product is “deemed an unconditional gift” at the point of violation: when the consumer is charged “under a continuous service agreement or automatic renewal of a purchase” without Google “first obtaining the consumer’s affirmative consent as described in section 17602.” See § 17603. Dispose of: To “dispose of” means “to get rid of.”?? Consumers can “get rid of’ App subscriptions 23 by ending their subscription or deleting their Google account. 3. Section 17603 Is Not limited to Tangible, Physical Objects. 10 Google asks the Court to go beyond section 17603’s unambiguous language to read a tangibility 11 requirement that doesn’t exist into the statute. Google’s argument violates the most basic tenets of statutory 12 construction and is inconsistent with the consumer protection intent of the statute. 13 Where the Legislature wants to limit a statute’s coverage to tangible goods it does so explicitly. 14 See, e.g., Cal. Civ. Code §§ 1689.24(c) (““Goods’ means tangible chattels bought for use primarily for 15 personal, family, or household purposes ...”), added in 1989; 1689.5(c) (same for home solicitation 16 contracts), added in 1971; 1761(a) (same under CLRA), added in 1970; 1802.1 (same for retail installment 17 sales), added in 1959. Where the legislature imposed a requirement in one context, but did not do so in 18 another, “it is not a judicial function to rewrite the statute by inserting such a requirement.” Moores v. Bd. 19 of Sup’rs of Mendocino Cnty., 122 Cal. App. 4th 883, 891 (2004) (citing Stop Youth Addiction, Inc. v. 20 Lucky Stores, Inc., 17 Cal. 4th 553, 573 (1998)); accord City of Ontario v. Superior Court, 12 Cal. App. 4th 21 894, 902 (1993) (“We must assume that the Legislature knew how to create an exception if it wished to do 22 so....”). The Legislature is presumed to be aware of these other statutes, all written before the ARL was 23 enacted in 2010, see People v. Davis, 126 Cal. App. 4th 1416, 1427 (2005), and the fact that it did not 24 21 See also id. at 3 (“Your contract for the purchase and use of Content is completed ...”) (emphasis 25 added); id. (“Google may allow you to download, view or use Content free of charge on Google Play.”) (emphasis added). 26 22 https://www.merriam-webster.com/dictionary/dispose (entry for “dispose of”). 3 Other California statutes confirm that intangible products can be “disposed of.” Financial Code section 27 18420(1) requires a conservator to “dispose of ... any or all the assets and property ... tangible and intangible, of any nature” upon taking possession of a company. Another code section governs contracts 28 whereby minors agree to “sell, lease, license or otherwise dispose of” various personal intellectual properties, “either tangible or intangible.” See Cal. Fam. Code § 6750(a)(2). 8 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO DECERTIFY CLASS — CASE NO. 18CV328915 870906.19 limit 17603’s “goods, wares, merchandise, or products” to tangible items means a court cannot read that limitation into the phrase.