Preview
DAVID H. KRAMER, (SBN 168452)
AMIT Q. GRESSEL (SBN 307663
JORDAN A. NELSON (SBN 327915)
WILSON SONSINI GOODRICH & ROSATI
650 Page Mill Road
Palo Alto, CA 94304-1050
Telephone: (650) 493-9300
Facsimile: (650) 565-5100
Email: dkramer@wsgr.com
Emai gressel@wsgr.com
Email: jordan.nelson@wsgr.com
VICTOR JIH (SBN 186515)
WILSON SONSINI GOODRICH & ROSATI
633 West Fifth Street, Suite 1550
Los Angeles, CA 90071-2027
Telephone: (323) 210-2900
Facsimile: (866) 974-7329
Email: vjih@wsgr.com
Attorneys for Defendant
GOOGLE LLC
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
ABDULLAH UZAIR, ANGEL CHAVEZ, Case No. 18CV328915
NICHOLAS JOEL LUSKIN, SALVADOR
DE LA O, individually and on behalf
of all DECLARATION OF AMIT Q. GRESSEL
others similarly situated, IN SUPPORT OF DEFENDANT’S
MOTION TO DECERTIFY CLASS
Plaintiffs, DATE: September 28, 2023
TIME: 1:30 PM
DEPT.: 1
JUDGE: Honorable Sunil R. Kulkarni
GOOGLE LLC, a California Limited
Liability Company,
Defendant.
I, Amit Q. Gressel, declare:
Tam an attorney duly licensed to practice before all Courts ofthe State of California.
Tam an associate with the law firm of Wilson Sonsini Goodrich & Rosati, PC, attorneys of record
for Defendant Google LLC (“Defendant”). I make this declaration on information and belief. If
called as a witness, I could and would competently testify to the information stated herein.
I make this Declaration in support of Defendant’s Motion to Decertify Class.
RESSEL ECLARATION IN UPPORTOF ASE 18CV328915
EFENDANT S. OTIONTO ECERTIFY LASS
3 Attached hereto as Exhibit 1 is a true and correct copy of the Dutcher v. Google
LLC, No. 20-CV-366905 (Cal. Super.), Order Concerning Plaintiffs’ Motion for Class
Certification entered on September 21, 2022.
4 Attached hereto as Exhibit 2 is a true and correct copy of the Dutcher v. Google
LLC, No. 20-CV-366905 (Cal. Super.), Order Concerning Defendants Google LLC and YouTube,
LLC’s first Motion to Decertify Class entered on July 19, 2023.
5 Attached hereto as Exhibit 3, is a true and correct copy of the Ingalls v. Spotify,
No. 3:16-cv-03533-WHA (N.D. Cal. July 27, 2017), Dkt. 102, Order Denying Class Certification
and Vacating Evidentiary Hearing.
10 I declare under penalty of perjury under the laws of the State of California that the
11 foregoing is true and correct. This declaration is executed this 27" day of July 2023 at El Cerrito,
12 California.
13
By: /s/ Amit Q. Gressel
14 Amit Q. Gressel
15 Attorneys for Defendant Google LLC
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RESSEL ECLARATION IN UPPORTOF ASE 18CV328915
EFENDANT S OTIONTO ECERTIFY LASS
Exhibit 1
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA
10
11 LANCE DUTCHER, Case No.: 20CV366905
12 Plaintiff, ORDER CONCERNING PLAINTIFF’S
13 MOTION FOR CLASS
Vv. CERTIFICATION AND RELATED
14 MOTIONS TO SEAL
GOOGLE LLC, d/b/a YOUTUBE, et al.,
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16 Defendants.
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19 This is a putative class action arising from the automatic renewal of subscriptions for
20 digital content offered by Defendants Google LLC, d/b/a YouTube and YouTube, LLC
21 (“Defendants” or “YouTube”).
22 Before the Court is Plaintiffs motion to certify a class, which YouTube opposes. The
25 Court issued a tentative ruling on August 29, 2022. It heard oral argument on September 1 and
24 took the matter under submission. The Court now issues its final order, which GRANTS IN
25 PART AND DENIES IN PART (without prejudice) Plaintiffs motion, with modifications to the
26 class and subclass definitions.
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Also before the Court are three motions to seal materials filed in connection with the
motion for class certification, which are unopposed. The Court DENIES Plaintiff's motions and
GRANTS Defendants’.
I BACKGROUND
As alleged in the operative complaint,' Defendants own and operate YouTube, a media-
sharing platform (the “YouTube Platform”). The YouTube Platform contains videos created by
individuals and entities that have registered with YouTube and uploaded their videos to a
“channel.” (Complaint, § 2.) The YouTube Platform is accessible as a website at youtube.com
(the “YT Website”), or as a mobile application or application on a set-top streaming device (the
10 “YT Apps”). (Ibid.)
11 Through the YouTube Platform, Defendants market, advertise, and sell paid
12 memberships to certain auto-renewing membership programs (the “YT Subscriptions”). (/d.,
13 43.) Among these are YouTube TV, which provides paying subscribers in the United States
14 access to exclusive YouTube content, premium channels, and film rentals; YouTube Music,
15 offering ad-free music streaming; and YouTube Premium, which provides ad-free content on the
16 YouTube Platform, YouTube’s premium original series, films produced by YouTube
17 personalities, and background playback of content on mobile devices. (/d., Ff 3, 16.)
18 Consumers may sign up for Defendants’ YT Subscriptions through the YT Website and, in some
19 cases, the YT Apps. (/d., § 3.)
20 Plaintiff alleges that YouTube is among many large websites that have used “dark
21 patterns” in their user interfaces to trick users into doing things they might not otherwise do, like
22 signing up for recurring bills. (Complaint, § 20.) Defendants have used these dark patterns
25 prevent user unsubscription from the YT Subscriptions by adopting complex cancellation
24 procedures to increase the friction in the subscription cancellation process,” making it difficult
25 for subscribers to cancel and leading to an increase in unintentional enrollments in paid
26 subscriptions. (/bid.) Many customers have complained of these practices. (/d., §{j 21-24.)
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' The Court takes no position on the truth of Plaintiff's allegations.
2
Plaintiff resides in Sherman Oaks, California. (Complaint, { 8.) In February 2020, he
signed up for a free trial of YouTube TV from Defendants’ website. (/bid.) Plaintiff alleges
that, in violation of California’s Automatic Renewal Law (Bus. Prof. Code §§ 17600 et seq., also
known as the “ARL”), Defendants did not disclose to him all required automatic renewal offer
terms associated with his subscription or obtain his affirmative consent to those terms. (Jbid.)
Also in alleged violation of the ARL, Defendants sent Plaintiff an acknowledgement email that
failed to provide him with the complete automatic renewal terms that applied to Defendants’
offer, a description of Defendants’ full cancellation policy, or information regarding how to
cancel his YT Subscription in a manner capable of being retained by him. (/bid.)
10 About two weeks later, Defendants automatically renewed Mr. Dutcher’s YT
11 Subscription and charged him $49.99, the full standard monthly rate. (/bid.) Immediately after
12 seeing Defendants’ charge to his credit card, Plaintiff attempted to cancel his subscription, which!
13 he struggled to do due to Defendants’ confusing cancellation policy, crucial aspects of which
14 ere missing from the checkout page. (/bid.) Plaintiff ultimately called Defendants to request a
15 refund of the monthly charge, but they denied his request. (Jbid.) “Had Defendants complied
16 with the ARL, Plaintiff would have been able to read and review the automatic renewal terms
17 prior to subscribing, and he would have not subscribed or would have cancelled his YT
18 Subscription prior to the expiration of the initial subscription period.” (Jbid.) Specifically,
19 Plaintiff explains that he believed that his free trial would last for four weeks rather than two.
20 (id., 60.)
21 The Complaint describes in detail the manner in which users enroll in YT Subscriptions,
22 the ways in which Plaintiff contends this violates the ARL, and Plaintiff's own experience.
25 (Complaint, §{| 34-68.) Based on these allegations, Plaintiff filed the Complaint on behalf of a
24 putative class of Californians who “incurred renewal fee(s) in connection with Defendants’
25 YouTube TV, YouTube Music, and YouTube Premium subscription offerings.” (/d., 69.) He
26 brings individual and putative class claims for (1) violations of the Unfair Competition Law
27 (Bus. & Prof. Code §§ 17200, et seq., the “UCL”) through unlawful and/or unfair business
28 practices, including violations of the ARL; (2) conversion; (3) violations of the False Advertising|
Law (Bus. & Prof. Code §§ 17500, et seq., the “FAL”); (4) violations of the Consumers Legal
Remedies Act (Civ. Code §§ 1750, et seq., the “CLRA”); (5) unjust enrichment/restitution;
(6) negligent misrepresentation; and (7) fraud.
IL. MOTION FOR CLASS CERTIFICATION
Plaintiff moves to certify a class of:
All persons in California who enrolled in any of Defendants’ automatically
renewing subscriptions to YouTube TV, YouTube Music, and YouTube Premium
(the “YouTube Subscriptions” or “YT Subscriptions”), excluding those who
10 enrolled through iOS-based mobile applications from Apple’s App Store, and
11 who, from June 4, 2016 to and through the date of final judgment in this action,
12 incurred and paid fees in connection with such subscription(s).
13
14 Plaintiff also seeks to certify subclasses of class members who enrolled in YouTube TV,
15 YouTube Music, and YouTube Premium, respectively.
16 Defendants oppose Plaintiff's motion, urging that the proposed class is not ascertainable,
17 common questions of law and fact do not predominate, the class lacks typicality, and class action!
18 litigation is not superior here because certain users have already been offered full refunds.
19 A. Legal Standard
20 As explained by the California Supreme Court:
21
22 The certification question is essentially a procedural one that does not ask whether
25 an action is legally or factually meritorious. A trial court ruling on a certification
24 motion determines whether the issues which may be jointly tried, when compared
25 with those requiring separate adjudication, are so numerous or substantial that the
26 maintenance of a class action would be advantageous to the judicial process and
27 to the litigants.
28
(Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326, internal quotation
marks, ellipses, and citations omitted (Sav-on Drug Stores).)
California Code of Civil Procedure section 382 authorizes certification of a class “when
the question is one of a common or general interest, of many persons, or when the parties are
numerous, and it is impracticable to bring them all before the court ....” Section 382 requires:
(1) an ascertainable class; and (2) a well-defined community of interest among the class
members. (Sav-On Drug Stores, supra, 34 Cal.4th at p. 326.) “Other relevant considerations
include the probability that each class member will come forward ultimately to prove his or her
separate claim to a portion of the total recovery and whether the class approach would actually
10 serve to deter and redress alleged wrongdoing.” (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th
11 429, 435.)
12 The plaintiff has the burden of establishing that class treatment will yield “substantial
13 benefits” to both “the litigants and to the court.” (Blue Chip Stamps v. Superior Court (1976) 18
14 Cal.3d 381, 385.) The court must examine all the evidence submitted in support ofand in
15 opposition to the motion “‘in light of the plaintiffs’ theory of recovery.” (Department of Fish and|
16 Game v. Superior Court (2011) 197 Cal.App.4th 1323, 1349.) The evidence is considered
17 “together”; there is no burden-shifting as in other contexts. (/bid.)
18 “The CLRA has its own class action requirements pursuant to Civil Code section 1781,
19 subdivision (b): (1) the impracticability of bringing all members of the class before the court;
20 (2) questions of law or fact common to the class are substantially similar and predominate over
21 the questions affecting the individual members; (3) the claims of the class representative are
22 typical of the class; and (4) the class representatives will fairly and adequately protect the
25 interests of the class.” (Thompson v. Automobile Club of Southern California (2013) 217
24 Cal.App.4th 719, 727-728, disapproved on other grounds by Noel, supra, 7 Cal.5th at p. 986, fn.
25 15.) As these requirements are substantially similar to those applicable to other class actions, the
26 two sets of requirements may be, and generally are, analyzed together. (/bid.)
27 B. Numerous and Ascertainable Class
28
A class is ascertainable “when it is defined in terms of objective characteristics and
common transactional facts that make the ultimate identification of class members possible when!
that identification becomes necessary.” (Noel v. Thrifty Payless, Inc. (2019) 7 Cal.5th 955, 980
(Noel).) A class definition satisfying these requirements
puts members of the class on notice that their rights may be adjudicated in the
proceeding, so they must decide whether to intervene, opt out, or do nothing and
live with the consequences. This kind of class definition also advances due
process by supplying a concrete basis for determining who will and will not be
10 bound by (or benefit from) any judgment.
11
12 (Noel, supra, 7 Cal.5th at p. 980, citation omitted.)
13 “As a tule, a representative plaintiff in a class action need not introduce evidence
14 establishing how notice of the action will be communicated to individual class members in order
15 to show an ascertainable class.” (Noel, supra, 7 Cal.5th at p. 984.) Still, it has long been held
16 that “[c]lass members are ‘ascertainable’ where they may be readily identified ... by reference to
17 official records.” (Rose v. City of Hayward (1981) 126 Cal. App. 3d 926, 932, disapproved of on|
18 another ground by Noel, supra, 7 Cal.Sth 955; see also Cohen v. DIRECTV, Inc. (2009) 178
19 Cal.App.4th 966, 975-976 [“The defined class of all HD Package subscribers is precise, with
20 objective characteristics and transactional parameters, and can be determined by DIRECTV’s
21 own account records. No more is needed.”].)
22 Here, the many thousands of putative class members have already been identified from
25 YouTube’s records, and the class is clearly defined based on objective characteristics. The same
24 is true of the proposed subclasses.
25 YouTube contends that there is no way to objectively determine whether putative class
26 members are “consumers” as required for the ARL to apply, or whether they instead purchased a
27
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subscription for business purposes.” But self-identification by putative class members is a valid
way ofdefining a class. (See Noel, supra, 7 Cal.Sth at p. 980 [class is ascertainable when
identifying class members is possible “when that identification becomes necessary”; class
definitions that permit self-identification suffice].) Here, putative class members easily can
verify whether they purchased a subscription for personal, family, or household purposes. And
there is common evidence of “personal, non-commercial use” in the form of YouTube’s own
Terms of Service, which provide that subscribers are not allowed to use YouTube’s services for
other purposes. (See Decl. of Neal J. Deckant ISO Mot, Exs. 6 & 7, section 4.)
Finally, if the Court were to accept Defendants’ argument, then no ARL-based UCL class}
10 claim would ever be permissible, given this “personal, family, or household purposes” condition.
11 Yet UCL actions based on an underlying alleged violation of the ARL were clearly contemplated|
12 by the Legislature. (See Mayron v. Google LLC (2020) 54 Cal.App.5th 566, 573 (Mayron)
13 [ARL’s author noted violations of the statute could be enforced through section 17200].)
14 Therefore, the Court will modify the class definition to make it explicit that only those
15 who purchased a subscription for personal, family, or household purposes are included in the
16 putative class.? So defined, the Court believes that this class is ascertainable.*
17
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? The ARL defines a “consumer” as “any individual who seeks or acquires, by purchase or lease,
21 any goods, services, money, or credit for personal, family, or household purposes.” (Bus. &
22 Prof. Code, § 17601, subd. (d).)
25
3 The Court has power to redefine the class in this way. (See Marler v. E.M. Johansing,
24 LLC (2011) 199 Cal.App.4th 1450, 1462 [where there is an ascertainable class, “plaintiffs” rights
should not be forfeited because of counsel’s choice of words in the complaint or class
25 certification motion”; the court itself can and should redefine the class where the evidence shows
26 such a redefined class would be ascertainable].)
27 4 YouTube urges the Court to wait before “forg[ing] ahead with a class here” in light of Google
LLC’s writ for interlocutory review of the Court’s order certifying a class in a similar case,
28
Abdullah Uzair v. Google LLC (Super. Ct. Santa Clara County, No. 18CV328915). But that writ
was denied on July 7, 2022.
Cc. Community of Interest
The “community-of-interest” requirement encompasses three factors: (1) predominant
questions of law or fact; (2) class representatives with claims or defenses typical of the class; and|
(3) class representatives who can adequately represent the class. (Sav-On Drug Stores, supra, 34
Cal.4th at p. 326.) YouTube contends that the first two factors are not satisfied here.
1 Predominant Questions of Law or Fact
For the first community of interest factor, “[i]n order to determine whether common
questions of fact predominate the trial court must examine the issues framed by the pleadings
and the law applicable to the causes of action alleged.” (Hicks v. Kaufman & Broad Home Corp.
10 (2001) 89 Cal.App.4th 908, 916 (Hicks).) The court must also give due weight to any evidence
11 of a conflict of interest among the proposed class members. (See J.P. Morgan & Co., Inc. v.
12 Superior Court (2003) 113 Cal.App.4th 195, 215.) The ultimate question is whether the issues
13 which may be jointly tried, when compared with those requiring separate adjudication, are so
14 numerous or substantial that the maintenance of a class action would be advantageous to the
15 judicial process and to the litigants. (Lockheed Martin Corp. v. Superior Court (2003) 29
16 Cal.4th 1096, 1104-1105 (Lockheed Martin).)
17 “As a general rule if the defendant’s liability can be determined by facts common to all
18 members of the class, a class will be certified even if the members must individually prove their
19 damages.” (Hicks, supra, 89 Cal.App.4th at p. 916.) However, “class treatment is not
20 appropriate if every member of the alleged class would be required to litigate numerous and
21 substantial questions determining his individual right to recover following the ‘class judgment’
22 on common issues.” (Wilson v. The La Jolla Group (2021) 61 Cal.App.5th 897, 908, internal
25 citations and quotation marks omitted.)
24 Plaintiff contends that common issues predominate here because: a) the putative class
25 members were exposed to substantially similar subscription flows and acknowledgement emails,
26 which means that whether ARL violations exist and their materiality if so can be proved with
27 common evidence; and b) restitution “is available without individualized proof of deception,
28
reliance and injury.” (in re Tobacco II Cases (2009) 46 Cal.4th 298, 320 [discussing restitution
under the UCL] (Tobacco I/).) Defendants dispute each of these points.
a. materiality and reliance*
Plaintiff’s theory of the case is in the nature of fraud, given his allegations of consumer
deception. For a UCL case based on a fraud or fraud-like theory, the Court believes that actual
reliance is necessary, regardless of which UCL prong is alleged. (See Kwikset Corp. v. Superior
Court (2011) 51 Cal.4th 310, 327, fn. 9 (Kwikset) [actual reliance requirement applies even
where certain misrepresentations are expressly prohibited by law and thus also violate the UCL’s
unlawful prong, so long as “[t]he theory of the case is that [the defendant] engaged in
10 misrepresentations and deceived consumers”]; accord Veera v. Banana Republic, LLC (2016) 6
11 Cal.App.Sth 907, 919 (Veera).) After all, “[a] consumer’s burden of pleading causation in a
12 UCL action should hinge on the nature of the alleged wrongdoing rather than the specific prong
13 of the UCL the consumer invokes.” (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350,
14 1363.)
15 Therefore, the Court believes that actual reliance and materiality are relevant issues for
16 this case. But even for fraud-based consumer claims, materiality and reliance do not typically
17 present a difficult hurdle to class certification. “[A] party seeking restitution must ... prove that
18 the defendant “may have ... acquired” “money or property” “by means of [its] unfair
19 competition” or false advertising. (Bus. & Prof. Code, §§ 17203, 17535; [citations].)” (Downey
20 vy. Public Storage, Inc. (2020) 44 Cal.App.5th 1103, 1114-1115 (Downey).) In this regard, the
21 focus
22
25 is the “reasonable consumer” and whether the content of the challenged
24 advertisement is “likely to deceive” that “reasonable consumer” ([citations]), such
25
26 5 Plaintiff requests judicial notice of various materials that he contends demonstrate the
materiality of the ARL’s requirements: legislative history materials (Exs. 1 and 2), federal
27 regulatory materials (Ex. 3, 10-14, and 16), orders in cases filed by the Federal Trade
Commission (Exs. 4-9), and guidelines published by the Association of National Advertisers.
28
The Court GRANTS the unopposed request. (Evid. Code, § 452, subds. (b), (c), (d), & (h).)
that there is no need for plaintiffs to prove that “individual” class members were
actually, subjectively deceived or actually, subjectively relied on a deceptive
advertisement ([Fletcher v. Sec. Pac. Nat’l Bank (1979) 23 Cal.3d 442, 451
[disclaiming need to prove “the individual’s lack of knowledge of the fraudulent
practice in each transaction”); Davis-Miller v. Automobile Club of Southern
California (2011) 201 Cal.App.4th 106, 121 [A representative plaintiff need not
prove that members of the public were actually deceived by the practice, relied on
the practice, or suffered damages.”’]; [citations]).
10 (Downey, supra, 44 Cal.App.5th at p. 1121.)°
11 Here, Plaintiff contends that the subscription flows and acknowledgement emails used in
12 connection with all three of the services at issue in this case were substantially similar, such that
13 their compliance with the ARL presents common issues. YouTube urges that there are material
14 differences between the services that destroy commonality or, at a minimum, require separate
15 subclasses “with proper representatives for each.”
16 As summarized in both sides’ briefs, YouTube has used one set of subscription flows and
17 acknowledgement emails for YouTube TV and another set for YouTube Music and YouTube
18 Premium. While the subscription flows are displayed in slightly different formats depending on
19 how the consumer enrolls (via desktop computer web browser, mobile browser, etc.) and what
20 subscription options the consumer chooses (free trial or straight-to-paid, etc.),’ the parties agree
21 that they can be grouped as follows: a “First YouTube TV Buy Cart” used from the launch of
22 YouTube TV in February 2017 until June 24, 2020 and a “Second YouTube TV Buy Cart” used
25 after that; a “First YouTube TV Acknowledgement Email” used from the launch of YouTube TV|
24
25 6 The same is not true with regard to Plaintiff's sixth cause of action for negligent
26 misrepresentation and seventh cause of action for fraud, which are not addressed in his motion.
The Court will not certify a class as to these claims because they do raise individual issues of
27 reliance, and Plaintiff does not address how these issues could be effectively managed in a class
action.
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7 YouTube does not contend that any of these differences in the subscription flows are material.
10
until October 29, 2021 and a “Second YouTube TV Acknowledgement Email” used after that; a
“First YouTube Music/Premium Buy Cart” shown from June 2016 until August 6, 2019 and a
“Second YouTube Music/Premium Buy Cart” shown after that; and, finally, a single “YouTube
Music/Premium Acknowledgment Email” used throughout the class period. (See Mot. at pp. 3—
12, Opp. at pp. 6-10.)
Plaintiff alleges that the First YouTube TV Buy Cart he saw when he signed up for
YouTube TV violated the ARL in eight different ways, while the First YouTube TV
Acknowledgement Email he received violated the ARL in three different ways. He alleges that
the other subscription flows and acknowledgement emails contained subsets of these same
10 violations. YouTube’s opposition summarizes these allegations in chart form:
11
12
13
14
15
16
17
18
19
20
21
22
25
24
25
26
27
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8 Plaintiff describes the subscription flow as a “Checkout Page” versus a “Buy Cart”: the Court
uses Defendants’ terminology for consistency with Defendants’ chart reproduced herein.
11
are
Plaintiff claims that the TV Buy TV Buy Cart | Music/ Music/
Buy Cart, includes or is Cart #1 #2 Premium Buy Premium
missing the following Feb. 2017 June 2020 Cart #1 Buy Cart #2
ARL-Compliant June 2016 Aug. 2019
Disclosure that:
Subscription will continue
Missing Includes Missing Includes
until canceled?
Recurring charges? Missing Missing Missing Missing
10
Amount will change? Does Not Does Not
11 Missing Missing
Apply Apply
12 Length of the automatic
Missing No No Allegation No Allegation
13 renewal term?
14 Minimum Purchase
Missing No Allegation No Allegation No Allegation
Obligation?
15
Cancellation limitations? Missing Missing Missing Missing
16
24-Hour Policy? Does Not Does Not
17 Missing Missing
Apply Apply
18
Separate Checkbox? Missing Missing Missing Missing
19
TV Email #1 TV Email #2 Music/Premium Email
20 Feb. 2017 Oct. 2021
21 Subscription renews
Missing Includes Includes
monthly?
22,
23 Cancellation Policy? Missing Missing Missing
24 How to Cancel? Missing Missing Missing
25
26
27
28
12
In the Court’s view, because Plaintiff and other early YouTube TV subscribers were
exposed to all of the alleged violations, the issues of whether the various disclosures identified
by Plaintiff were in fact not provided as required under the ARL are common ones, at least for
YouTube TV. For instance, Defendants state in their opposition that “in June 2020, YouTube
TV advised subscribers that ‘By clicking “Start Trial,” you will be charged the price above
monthly until you cancel. . .,” which is a slightly-different disclosure than later disclosures. But
a factfinder could separately assess whether earlier and later subscribers suffered an ARL
violation in this regard without great difficulty—and each question is common as to a large
subset of the class. The use of subclasses would enable these separate inquiries: there is no need
10 to “forc[e] a classwide answer” as Defendants suggest.
11 Defendants do not explain how these limited (albeit relevant) differences among a few
12 subgroups of the putative class predominate over the many common issues that would be
13 determined as described above. Defendants, at oral argument, identified other differences among}
14 class members, but many of those differences do not materially affect liability for ARL
15 violations. For instance, whether a customer used YouTube TV after a free trial or stopped using
16 the service is not relevant to whether the ARL was violated by the acknowledgment emails and
17 Buy Cart disclosures that this customer would have seen.
18 The Court therefore finds that there are common liability issues for YouTube TV
19 subscribers, despite the evolution of disclosures over the relevant time period. To the extent
20 there are differences, the Court believes that the use of subclasses, based on individuals who saw
21 the same subscription flow and received the same acknowledgement email, will limit confusion
22 for a factfinder. The subclasses would be as follows: a) individuals who enrolled from February
25 2017 through June 23, 2020; b) those who enrolled from June 24, 2020 to October 28, 2021; and
24 c) those who enrolled from October 29, 2021 and later.
25 But the disclosures shown to YouTube Music and Premium subscribers are different, and
26 may involve somewhat-different ARL problems. In addition, the evaluation of reasonable
27 reliance by YouTube Music and Premium subscribers may well differ from the reasonable
28 reliance analysis for YouTube TV because the “target population[s]” for the services are
13
different. (See In re Vioxx Class Cases (2009) 180 Cal.App.4th 116, 130 (Vioxx) [the UCL
“focuses on a reasonable consumer who is a member of the target population”].)
Most importantly, the Court is concerned that if YouTube Music and Premium
subscribers were part of the class, there would need to be numerous subclasses, each with its ow!
alleged ARL violations at issue. The Court believes that a factfinder ultimately trying this case
with all three products in the case likely would be confused by all the subclasses and separate
alleged ARL violations. This would make the class action not “advantageous to the judicial
process or its litigants.” (Sav-On Drug Stores, supra, 34 Cal 4th at p. 326.)
b restitution
10 As for restitution, Plaintiff proposes two alternative theories of recovery: first, a “full
11 refund” methodology and, alternatively, a “price premium” methodology.
12 Plaintiffs “full refund” theory is based on section 17603 of the ARL, the “unconditional
13 gift provision.”? According to YouTube, that theory is no longer viable under Mayron, supra, 54|
14 Cal.App.5th 566. But Mayron addressed the gift provision solely in the context of standing,
15 holding that the provision “does not confer standing for a section 17200 cause of action” where
16 the plaintiff did not otherwise allege he suffered any loss due to the alleged violations of the
17 ARL. (/d. at pp. 574-576.) Mayron specifically emphasized that “eligibility for a remedy and
18 standards for causation under § 17200 are ‘wholly distinct.’ ” (/d. at p. 575, quoting Kwikset
19 Corp. vy. Superior Court (2011) 51 Cal.4th 310, 335-336 (Kwikset).)
20
21 ° That section provides:
22 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
25 purchase, without first obtaining the consumer’s affirmative consent as described
24 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
25 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,
26
bearing the cost of, or responsibility for, shipping any goods, wares, merchandise,
27 or products to the business.
(Bus. & Prof. Code, § 17603.)
14
The Court is unaware of any published authority addressing whether the gift provision
provides a basis for awarding a full refund as restitution in a consumer class action.!° While it
agrees with Defendants that Mayron casts doubt on this theory, this is a merits issue capable of
being resolved on a classwide basis. It is an issue on which Plaintiff will bear the burden, but his
ability to do so is not foreclosed by YouTube’s authorities. (See Tobacco Cases II, supra, 240
Cal.App.4th at p. 792 [“We agree that Vioxx does not purport to set forth the exclusive measure
of restitution potentially available in a UCL case. It remains, however, that plaintiffs had the
burden of proving entitlement to an alternative measure of restitution proper under all the
circumstances.”].)!! In any event, “[a]s a general rule if the defendant's liability can be
10 determined by facts common to all members of the class, a class will be certified even if the
11
12
13
‘0 The Court acknowledges that class certification was denied on the basis that the gift provision
14 does not apply to services (and plaintiff failed to offer any other classwide theory of restitution)
in Robinson v. OnStar, LLC (S.D.Cal. Jan. 22, 2020, No. 15-CV-1731 JLS (MSB)) 2020
15 U.S.Dist.LEXIS 10797, at *66-72 (Robinson). But Robinson reached that conclusion without
analysis. In the Court’s view, this issue is not as clear as Robinson seems to assume, and it
16
should be fully briefed on the merits. Moreover, Robinson emphasized a lack of evidence that
17 the named plaintiff would not have subscribed to the service at issue if the required disclosures
were provided. (See Robinson, supra, 2020 U.S.Dist.LEXIS 10797, at *70—72 [emphasizing that]
18 there was no evidence the plaintiff would not have subscribed if the required disclosures were
19 provided; “an aggrieved party may be entitled to full restitution if she proves either that the
defendant’s product had no value or that she would not have purchased the defendant’s product
20 absent the alleged misrepresentations”].) Here, as discussed below, there is such evidence.
21
‘| In particular, YouTube contends that Mayron held that the gift provision “creates a penalty,”
22 which cannot form the basis for restitution. But this is not what Mayron held. Rather—and
25 again, in the context of addressing standing—t stated, “The unconditional gift provision of the
automatic renewal law creates a right to retain a product already received. That right is a
24 consequence of violating the statute.” (Mayron, supra, 54 Cal.App.Sth at p. 575.) Mayron went
on to analogize those circumstances to “[a]n example” in which the opinion “suppose[d] the
25 automatic renewal law imposed a statutory penalty of $1,000 for each violation.” (Ibid.) It
26 explained why standing was not established by either the gift provision or an actual “penalty”:
“An after-the-fact right provided by the Legislature cannot amount to causation. Nor should a
27 penalty imposed on a vendor be viewed as the source of injury to a consumer.” (bid., italics
added.) But, again, Mayron specifically noted that “eligibility for a remedy” under a statute (like|
28
the gift provision) and a loss caused by the defendant’s conduct sufficient to establish standing
under the UCL are “wholly distinct,” citing Kwikset, supra, 51 Cal.4th 310, 335-336.
15
members must individually prove their damages.' [Citations.]” (Brinker Restaurant Corp. v.
Superior Court (2012) 53 Cal.4th 1004, 1021-1022.)
Since certification is appropriate based on Plaintiffs primary, “full refund” theory, the
Court need not address his alternative, “price premium” methodology at this juncture. (See
Apple Inc. v. Superior Court (2018) 19 Cal.App.Sth 1101, 1120 [a court “may find that it need
not rule on the admissibility of certain expert opinion evidence offered in connection with class
certification because it is irrelevant or unnecessary for its decision”].) The Court does
acknowledge YouTube’s argument that the proposed conjoint survey methodology proposed by
Plaintiff would need to be tailored to the specific theories of liability at issue—of which there are
10 several. Should Plaintiff's “full refund” theory fail on the merits, this will need to be addressed.
11 At the moment, the Court merely notes that it may be possible for Plaintiff to show that the
12 hassle and inconvenience caused by YouTube’s alleged ARL violations reduced the value of its
13 subscriptions to consumers by a common amount. (See Robinson, supra, 2020 U.S.Dist.LEXIS
14 10797, at *72, fn. 11 [granting plaintiff leave to renew her motion for class certification based on
15 this theory].) But for now, Plaintiff's full refund theory raises essentially a pure legal issue,
16 which is amenable to classwide resolution.
17 Down the road, it might make sense to have targeted—and early—motions for summary
18 adjudication as to the viability of the “full refund” and “price premium” damage theories. (See
19 Code Civ. Proc., § 437c(t).) The Court believes that this issue should be decided after class
20 certification, so as to avoid any “one-way intervention” problems. (See Fireside Bank v.
21 Superior Court (2007) 40 Cal. 4th 1069, 1081.) But that is not something that has to be decided
22 today.
25 Cc. conclusion
24 Plaintiff has established that common issues predominate with regard to whether putative
25 class members experienced ARL violations and whether such violations were material, at least
26 with regard to the service to which he subscribed (YouTube TV). YouTube has identified some
27 relevant differences in the potential violations to which putative class members were exposed,
28 but this could be addressed through the use of subclasses as described above. Finally, Plaintiff's
16
primary, “full refund” theory of restitution is amenable to classwide resolution, so the Court need|
not address his alternative, “price premium” methodology right now.
2. Adequacy and Typicality
“Adequacy of representation depends on whether the plaintiff's attorney is qualified to
conduct the proposed litigation and the plaintiff's interests are not antagonistic to the interests of
the class.” (McGhee v. Bank of America (1976) 60 Cal.App.3d 442, 450.) The fact that a class
representative does not personally incur all of the damages suffered by each different class
member does not necessarily preclude the representative from providing adequate representation
to the class. (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 238, disapproved of
10 on another ground by Hernandez v. Restoration Hardware, Inc. (2018) 4 Cal.5th 260.) Only a
11 conflict that goes to the very subject matter of the litigation will defeat a party’s claim of
12 representative status. (/bid.)
13 Here, Plaintiff has the same interest in maintaining this action as any class member would
14 have. Further, he has hired experienced counsel. Plaintiff has sufficiently demonstrated
15 adequacy of representation, which YouTube does not dispute.
16 “Although the questions whether a plaintiff has claims typical of the class and will be
17 able to adequately represent the class members are related, they are not synonymous.” (Martinez|
18 v. Joe’s Crab Shack Holdings (2014) 231 Cal.App.4th 362, 375.) “The test of typicality is
19 whether other members have the same or similar injury, whether the action is based on conduct
20 which is not unique to the named plaintiffs, and whether other class members have been injured
21 by the same course of conduct.” (/bid., quoting Seastrom v. Neways, Inc. (2007) 149
22 Cal.App.4th 1496, 1502.)
25 As discussed above, the named plaintiff, Mr. Dutcher, was exposed to a subscription flow|
24 and acknowledgement email that contained all of the violations alleged in this case, at least for
25 YouTube TV. So in that sense, his experience is typical of the entire class (as redefined by the
26 Court). However, the typicality of Mr. Dutcher’s injury is also key here. An action under the
27 unfair competition statutes
28
17
can be brought only “by a person who has suffered injury in fact and has lost
money or property as a result of the unfair competition.” (§ 17204.) It is not
enough that a plaintiff lost money; to have standing, there must be a causal link
between the unlawful practice and the loss. (Hall v. Time, Inc. (2008) 158
Cal.App.4th 847, 849 ... [We hold the phrase ‘as a result of in the [unfair
competition law] imposes a causation requirement; that is, the alleged unfair
competition must have caused the plaintiff to lose money or property.”].)
(Mayron, supra, 54 Cal.App.5th at p. 574.) Similarly, to be adequate and typical of the class, a
9 putative class member must have suffered the same type of harm that he or she contends the
10 other class members did:
11 The class representative must be situated similarly to class members. (Classen v.
12 Weller (1983) 145 Cal.App.3d 27, 46 ....) “It is the fact that the class plaintiffs
13 claims are typical and his representation of the class adequate which gives
14 legitimacy to permitting him to bind class members who have notice of the
15 action. [Citations.]” (Trotsky v. Los Angeles Fed. Sav. & Loan Assn. (1975) 48
16 Cal.App.3d 134, 146 ....) Further, “there can be no class certification unless it is
17 determined by the trial court that similarly situated persons have sustained
18 damage. There can be no cognizable class unless it is first determined that
19 members who make up the class have sustained the same or similar damage.”
20 (Guidotti v. County of Yolo(1989) 214 Cal.App.3d 1552, 1566-1567
21 ..; also Collins v. Safeway Stores, Inc., supra, 187 Cal.App.3d at pp. 72-73;
22 cf. Spoon v. Superior Court (1982) 130 Cal.App.3d 735, 741 ....)
25
24 (Caro v. Procter & Gamble Co. (1993) 18 Cal.App.4th 644, 663-664 (Caro).)
25 Plaintiff therefore must provide evidence that he suffered some harm from the violations
26 at issue, and that he suffered similar harm to other putative class members. (Defendants are
27 incorrect in arguing that it must be the same harm.) The type of harm that suffices in an ARL
28 case similar to this one is discussed in Mayron:
18
The statutory violations alleged by plaintiff are that Google did not provide
required disclosures and did not make it easy enough to cancel the subscribed
service. To establish standing, plaintiff would also need to allege that he ordered
increased Google Drive storage but would not have done so had the disclosures
been provided, or that he would have cancelled the additional storage had it been
easier to do so. (See, e.g., Kwikset[, supra,] 51 Cal.4th [at p.] 317 ... [plaintiffs
who can truthfully allege they were deceived by a product’s label into purchasing
the product and would not have purchased it otherwise, have “ ‘lost money or
2»
10 property within the meaning of § 17204].) But plaintiff makes no such
11 allegation, which suggests he would have purchased and maintained the added
12 Google Drive capacity even if Google had complied with the automatic renewal
13 law. The complaint therefore does not show a causal link between plaintiff's
14 payments and Google’s alleged violations. (Daro v. Superior Court (2007) 151
15 Cal.App.4th 1079, 1098 ... [“In short, there must be a causal connection between
16 the harm suffered and the unlawful business activity. That causal connection is
17 broken when a complaining party would suffer the same harm whether or not a
18 defendant complied with the law.”].)
19 (Mayron, supra, 54 Cal.App.5th at pp. 574-575.)
20 Here, Mr. Dutcher submits a declaration stating that he “was confused about the terms
21 and conditions of the free trial” of YouTube TV that he signed up for “and its conversion to a
22 paid subscription, and I was under the impression that the free trial would last for one month
25 rather than just two weeks. Additionally, I was surprised by the price charged, which I had not
24 expected.” (Decl. of Lance Dutcher ISO Mot., J 6.) When he attempted to cancel, he could only
25 do so after fruitlessly searching YouTube’s web site for cancelation instructions and ultimately
26 calling YouTube’s customer service line. (See id., f{ 7-8; see also Decl. of Amit Gressel ISO
27 Opp., Ex. 3, Dutcher Depo. Trans. at pp. 77-80, 101-102 [YouTube’s customer service
28 representative cancelled Plaintiff's subscription in one call].)
19
YouTube denied Mr. Dutcher’s refund request, because he “
Preview
DAVID H. KRAMER, (SBN 168452) AMIT Q. GRESSEL (SBN 307663 JORDAN A. NELSON (SBN 327915) WILSON SONSINI GOODRICH & ROSATI 650 Page Mill Road Palo Alto, CA 94304-1050 Telephone: (650) 493-9300 Facsimile: (650) 565-5100 Email: dkramer@wsgr.com Emai gressel@wsgr.com Email: jordan.nelson@wsgr.com VICTOR JIH (SBN 186515) WILSON SONSINI GOODRICH & ROSATI 633 West Fifth Street, Suite 1550 Los Angeles, CA 90071-2027 Telephone: (323) 210-2900 Facsimile: (866) 974-7329 Email: vjih@wsgr.com Attorneys for Defendant GOOGLE LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA ABDULLAH UZAIR, ANGEL CHAVEZ, Case No. 18CV328915 NICHOLAS JOEL LUSKIN, SALVADOR DE LA O, individually and on behalf of all DECLARATION OF AMIT Q. GRESSEL others similarly situated, IN SUPPORT OF DEFENDANT’S MOTION TO DECERTIFY CLASS Plaintiffs, DATE: September 28, 2023 TIME: 1:30 PM DEPT.: 1 JUDGE: Honorable Sunil R. Kulkarni GOOGLE LLC, a California Limited Liability Company, Defendant. I, Amit Q. Gressel, declare: Tam an attorney duly licensed to practice before all Courts ofthe State of California. Tam an associate with the law firm of Wilson Sonsini Goodrich & Rosati, PC, attorneys of record for Defendant Google LLC (“Defendant”). I make this declaration on information and belief. If called as a witness, I could and would competently testify to the information stated herein. I make this Declaration in support of Defendant’s Motion to Decertify Class. RESSEL ECLARATION IN UPPORTOF ASE 18CV328915 EFENDANT S. OTIONTO ECERTIFY LASS 3 Attached hereto as Exhibit 1 is a true and correct copy of the Dutcher v. Google LLC, No. 20-CV-366905 (Cal. Super.), Order Concerning Plaintiffs’ Motion for Class Certification entered on September 21, 2022. 4 Attached hereto as Exhibit 2 is a true and correct copy of the Dutcher v. Google LLC, No. 20-CV-366905 (Cal. Super.), Order Concerning Defendants Google LLC and YouTube, LLC’s first Motion to Decertify Class entered on July 19, 2023. 5 Attached hereto as Exhibit 3, is a true and correct copy of the Ingalls v. Spotify, No. 3:16-cv-03533-WHA (N.D. Cal. July 27, 2017), Dkt. 102, Order Denying Class Certification and Vacating Evidentiary Hearing. 10 I declare under penalty of perjury under the laws of the State of California that the 11 foregoing is true and correct. This declaration is executed this 27" day of July 2023 at El Cerrito, 12 California. 13 By: /s/ Amit Q. Gressel 14 Amit Q. Gressel 15 Attorneys for Defendant Google LLC 16 17 18 19 20 21 22 23 24 25 26 27 28 RESSEL ECLARATION IN UPPORTOF ASE 18CV328915 EFENDANT S OTIONTO ECERTIFY LASS Exhibit 1 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA 10 11 LANCE DUTCHER, Case No.: 20CV366905 12 Plaintiff, ORDER CONCERNING PLAINTIFF’S 13 MOTION FOR CLASS Vv. CERTIFICATION AND RELATED 14 MOTIONS TO SEAL GOOGLE LLC, d/b/a YOUTUBE, et al., 15 16 Defendants. 17 18 19 This is a putative class action arising from the automatic renewal of subscriptions for 20 digital content offered by Defendants Google LLC, d/b/a YouTube and YouTube, LLC 21 (“Defendants” or “YouTube”). 22 Before the Court is Plaintiffs motion to certify a class, which YouTube opposes. The 25 Court issued a tentative ruling on August 29, 2022. It heard oral argument on September 1 and 24 took the matter under submission. The Court now issues its final order, which GRANTS IN 25 PART AND DENIES IN PART (without prejudice) Plaintiffs motion, with modifications to the 26 class and subclass definitions. 27 28 Also before the Court are three motions to seal materials filed in connection with the motion for class certification, which are unopposed. The Court DENIES Plaintiff's motions and GRANTS Defendants’. I BACKGROUND As alleged in the operative complaint,' Defendants own and operate YouTube, a media- sharing platform (the “YouTube Platform”). The YouTube Platform contains videos created by individuals and entities that have registered with YouTube and uploaded their videos to a “channel.” (Complaint, § 2.) The YouTube Platform is accessible as a website at youtube.com (the “YT Website”), or as a mobile application or application on a set-top streaming device (the 10 “YT Apps”). (Ibid.) 11 Through the YouTube Platform, Defendants market, advertise, and sell paid 12 memberships to certain auto-renewing membership programs (the “YT Subscriptions”). (/d., 13 43.) Among these are YouTube TV, which provides paying subscribers in the United States 14 access to exclusive YouTube content, premium channels, and film rentals; YouTube Music, 15 offering ad-free music streaming; and YouTube Premium, which provides ad-free content on the 16 YouTube Platform, YouTube’s premium original series, films produced by YouTube 17 personalities, and background playback of content on mobile devices. (/d., Ff 3, 16.) 18 Consumers may sign up for Defendants’ YT Subscriptions through the YT Website and, in some 19 cases, the YT Apps. (/d., § 3.) 20 Plaintiff alleges that YouTube is among many large websites that have used “dark 21 patterns” in their user interfaces to trick users into doing things they might not otherwise do, like 22 signing up for recurring bills. (Complaint, § 20.) Defendants have used these dark patterns 25 prevent user unsubscription from the YT Subscriptions by adopting complex cancellation 24 procedures to increase the friction in the subscription cancellation process,” making it difficult 25 for subscribers to cancel and leading to an increase in unintentional enrollments in paid 26 subscriptions. (/bid.) Many customers have complained of these practices. (/d., §{j 21-24.) 27 28 ' The Court takes no position on the truth of Plaintiff's allegations. 2 Plaintiff resides in Sherman Oaks, California. (Complaint, { 8.) In February 2020, he signed up for a free trial of YouTube TV from Defendants’ website. (/bid.) Plaintiff alleges that, in violation of California’s Automatic Renewal Law (Bus. Prof. Code §§ 17600 et seq., also known as the “ARL”), Defendants did not disclose to him all required automatic renewal offer terms associated with his subscription or obtain his affirmative consent to those terms. (Jbid.) Also in alleged violation of the ARL, Defendants sent Plaintiff an acknowledgement email that failed to provide him with the complete automatic renewal terms that applied to Defendants’ offer, a description of Defendants’ full cancellation policy, or information regarding how to cancel his YT Subscription in a manner capable of being retained by him. (/bid.) 10 About two weeks later, Defendants automatically renewed Mr. Dutcher’s YT 11 Subscription and charged him $49.99, the full standard monthly rate. (/bid.) Immediately after 12 seeing Defendants’ charge to his credit card, Plaintiff attempted to cancel his subscription, which! 13 he struggled to do due to Defendants’ confusing cancellation policy, crucial aspects of which 14 ere missing from the checkout page. (/bid.) Plaintiff ultimately called Defendants to request a 15 refund of the monthly charge, but they denied his request. (Jbid.) “Had Defendants complied 16 with the ARL, Plaintiff would have been able to read and review the automatic renewal terms 17 prior to subscribing, and he would have not subscribed or would have cancelled his YT 18 Subscription prior to the expiration of the initial subscription period.” (Jbid.) Specifically, 19 Plaintiff explains that he believed that his free trial would last for four weeks rather than two. 20 (id., 60.) 21 The Complaint describes in detail the manner in which users enroll in YT Subscriptions, 22 the ways in which Plaintiff contends this violates the ARL, and Plaintiff's own experience. 25 (Complaint, §{| 34-68.) Based on these allegations, Plaintiff filed the Complaint on behalf of a 24 putative class of Californians who “incurred renewal fee(s) in connection with Defendants’ 25 YouTube TV, YouTube Music, and YouTube Premium subscription offerings.” (/d., 69.) He 26 brings individual and putative class claims for (1) violations of the Unfair Competition Law 27 (Bus. & Prof. Code §§ 17200, et seq., the “UCL”) through unlawful and/or unfair business 28 practices, including violations of the ARL; (2) conversion; (3) violations of the False Advertising| Law (Bus. & Prof. Code §§ 17500, et seq., the “FAL”); (4) violations of the Consumers Legal Remedies Act (Civ. Code §§ 1750, et seq., the “CLRA”); (5) unjust enrichment/restitution; (6) negligent misrepresentation; and (7) fraud. IL. MOTION FOR CLASS CERTIFICATION Plaintiff moves to certify a class of: All persons in California who enrolled in any of Defendants’ automatically renewing subscriptions to YouTube TV, YouTube Music, and YouTube Premium (the “YouTube Subscriptions” or “YT Subscriptions”), excluding those who 10 enrolled through iOS-based mobile applications from Apple’s App Store, and 11 who, from June 4, 2016 to and through the date of final judgment in this action, 12 incurred and paid fees in connection with such subscription(s). 13 14 Plaintiff also seeks to certify subclasses of class members who enrolled in YouTube TV, 15 YouTube Music, and YouTube Premium, respectively. 16 Defendants oppose Plaintiff's motion, urging that the proposed class is not ascertainable, 17 common questions of law and fact do not predominate, the class lacks typicality, and class action! 18 litigation is not superior here because certain users have already been offered full refunds. 19 A. Legal Standard 20 As explained by the California Supreme Court: 21 22 The certification question is essentially a procedural one that does not ask whether 25 an action is legally or factually meritorious. A trial court ruling on a certification 24 motion determines whether the issues which may be jointly tried, when compared 25 with those requiring separate adjudication, are so numerous or substantial that the 26 maintenance of a class action would be advantageous to the judicial process and 27 to the litigants. 28 (Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326, internal quotation marks, ellipses, and citations omitted (Sav-on Drug Stores).) California Code of Civil Procedure section 382 authorizes certification of a class “when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court ....” Section 382 requires: (1) an ascertainable class; and (2) a well-defined community of interest among the class members. (Sav-On Drug Stores, supra, 34 Cal.4th at p. 326.) “Other relevant considerations include the probability that each class member will come forward ultimately to prove his or her separate claim to a portion of the total recovery and whether the class approach would actually 10 serve to deter and redress alleged wrongdoing.” (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 11 429, 435.) 12 The plaintiff has the burden of establishing that class treatment will yield “substantial 13 benefits” to both “the litigants and to the court.” (Blue Chip Stamps v. Superior Court (1976) 18 14 Cal.3d 381, 385.) The court must examine all the evidence submitted in support ofand in 15 opposition to the motion “‘in light of the plaintiffs’ theory of recovery.” (Department of Fish and| 16 Game v. Superior Court (2011) 197 Cal.App.4th 1323, 1349.) The evidence is considered 17 “together”; there is no burden-shifting as in other contexts. (/bid.) 18 “The CLRA has its own class action requirements pursuant to Civil Code section 1781, 19 subdivision (b): (1) the impracticability of bringing all members of the class before the court; 20 (2) questions of law or fact common to the class are substantially similar and predominate over 21 the questions affecting the individual members; (3) the claims of the class representative are 22 typical of the class; and (4) the class representatives will fairly and adequately protect the 25 interests of the class.” (Thompson v. Automobile Club of Southern California (2013) 217 24 Cal.App.4th 719, 727-728, disapproved on other grounds by Noel, supra, 7 Cal.5th at p. 986, fn. 25 15.) As these requirements are substantially similar to those applicable to other class actions, the 26 two sets of requirements may be, and generally are, analyzed together. (/bid.) 27 B. Numerous and Ascertainable Class 28 A class is ascertainable “when it is defined in terms of objective characteristics and common transactional facts that make the ultimate identification of class members possible when! that identification becomes necessary.” (Noel v. Thrifty Payless, Inc. (2019) 7 Cal.5th 955, 980 (Noel).) A class definition satisfying these requirements puts members of the class on notice that their rights may be adjudicated in the proceeding, so they must decide whether to intervene, opt out, or do nothing and live with the consequences. This kind of class definition also advances due process by supplying a concrete basis for determining who will and will not be 10 bound by (or benefit from) any judgment. 11 12 (Noel, supra, 7 Cal.5th at p. 980, citation omitted.) 13 “As a tule, a representative plaintiff in a class action need not introduce evidence 14 establishing how notice of the action will be communicated to individual class members in order 15 to show an ascertainable class.” (Noel, supra, 7 Cal.5th at p. 984.) Still, it has long been held 16 that “[c]lass members are ‘ascertainable’ where they may be readily identified ... by reference to 17 official records.” (Rose v. City of Hayward (1981) 126 Cal. App. 3d 926, 932, disapproved of on| 18 another ground by Noel, supra, 7 Cal.Sth 955; see also Cohen v. DIRECTV, Inc. (2009) 178 19 Cal.App.4th 966, 975-976 [“The defined class of all HD Package subscribers is precise, with 20 objective characteristics and transactional parameters, and can be determined by DIRECTV’s 21 own account records. No more is needed.”].) 22 Here, the many thousands of putative class members have already been identified from 25 YouTube’s records, and the class is clearly defined based on objective characteristics. The same 24 is true of the proposed subclasses. 25 YouTube contends that there is no way to objectively determine whether putative class 26 members are “consumers” as required for the ARL to apply, or whether they instead purchased a 27 28 subscription for business purposes.” But self-identification by putative class members is a valid way ofdefining a class. (See Noel, supra, 7 Cal.Sth at p. 980 [class is ascertainable when identifying class members is possible “when that identification becomes necessary”; class definitions that permit self-identification suffice].) Here, putative class members easily can verify whether they purchased a subscription for personal, family, or household purposes. And there is common evidence of “personal, non-commercial use” in the form of YouTube’s own Terms of Service, which provide that subscribers are not allowed to use YouTube’s services for other purposes. (See Decl. of Neal J. Deckant ISO Mot, Exs. 6 & 7, section 4.) Finally, if the Court were to accept Defendants’ argument, then no ARL-based UCL class} 10 claim would ever be permissible, given this “personal, family, or household purposes” condition. 11 Yet UCL actions based on an underlying alleged violation of the ARL were clearly contemplated| 12 by the Legislature. (See Mayron v. Google LLC (2020) 54 Cal.App.5th 566, 573 (Mayron) 13 [ARL’s author noted violations of the statute could be enforced through section 17200].) 14 Therefore, the Court will modify the class definition to make it explicit that only those 15 who purchased a subscription for personal, family, or household purposes are included in the 16 putative class.? So defined, the Court believes that this class is ascertainable.* 17 18 19 20 ? The ARL defines a “consumer” as “any individual who seeks or acquires, by purchase or lease, 21 any goods, services, money, or credit for personal, family, or household purposes.” (Bus. & 22 Prof. Code, § 17601, subd. (d).) 25 3 The Court has power to redefine the class in this way. (See Marler v. E.M. Johansing, 24 LLC (2011) 199 Cal.App.4th 1450, 1462 [where there is an ascertainable class, “plaintiffs” rights should not be forfeited because of counsel’s choice of words in the complaint or class 25 certification motion”; the court itself can and should redefine the class where the evidence shows 26 such a redefined class would be ascertainable].) 27 4 YouTube urges the Court to wait before “forg[ing] ahead with a class here” in light of Google LLC’s writ for interlocutory review of the Court’s order certifying a class in a similar case, 28 Abdullah Uzair v. Google LLC (Super. Ct. Santa Clara County, No. 18CV328915). But that writ was denied on July 7, 2022. Cc. Community of Interest The “community-of-interest” requirement encompasses three factors: (1) predominant questions of law or fact; (2) class representatives with claims or defenses typical of the class; and| (3) class representatives who can adequately represent the class. (Sav-On Drug Stores, supra, 34 Cal.4th at p. 326.) YouTube contends that the first two factors are not satisfied here. 1 Predominant Questions of Law or Fact For the first community of interest factor, “[i]n order to determine whether common questions of fact predominate the trial court must examine the issues framed by the pleadings and the law applicable to the causes of action alleged.” (Hicks v. Kaufman & Broad Home Corp. 10 (2001) 89 Cal.App.4th 908, 916 (Hicks).) The court must also give due weight to any evidence 11 of a conflict of interest among the proposed class members. (See J.P. Morgan & Co., Inc. v. 12 Superior Court (2003) 113 Cal.App.4th 195, 215.) The ultimate question is whether the issues 13 which may be jointly tried, when compared with those requiring separate adjudication, are so 14 numerous or substantial that the maintenance of a class action would be advantageous to the 15 judicial process and to the litigants. (Lockheed Martin Corp. v. Superior Court (2003) 29 16 Cal.4th 1096, 1104-1105 (Lockheed Martin).) 17 “As a general rule if the defendant’s liability can be determined by facts common to all 18 members of the class, a class will be certified even if the members must individually prove their 19 damages.” (Hicks, supra, 89 Cal.App.4th at p. 916.) However, “class treatment is not 20 appropriate if every member of the alleged class would be required to litigate numerous and 21 substantial questions determining his individual right to recover following the ‘class judgment’ 22 on common issues.” (Wilson v. The La Jolla Group (2021) 61 Cal.App.5th 897, 908, internal 25 citations and quotation marks omitted.) 24 Plaintiff contends that common issues predominate here because: a) the putative class 25 members were exposed to substantially similar subscription flows and acknowledgement emails, 26 which means that whether ARL violations exist and their materiality if so can be proved with 27 common evidence; and b) restitution “is available without individualized proof of deception, 28 reliance and injury.” (in re Tobacco II Cases (2009) 46 Cal.4th 298, 320 [discussing restitution under the UCL] (Tobacco I/).) Defendants dispute each of these points. a. materiality and reliance* Plaintiff’s theory of the case is in the nature of fraud, given his allegations of consumer deception. For a UCL case based on a fraud or fraud-like theory, the Court believes that actual reliance is necessary, regardless of which UCL prong is alleged. (See Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 327, fn. 9 (Kwikset) [actual reliance requirement applies even where certain misrepresentations are expressly prohibited by law and thus also violate the UCL’s unlawful prong, so long as “[t]he theory of the case is that [the defendant] engaged in 10 misrepresentations and deceived consumers”]; accord Veera v. Banana Republic, LLC (2016) 6 11 Cal.App.Sth 907, 919 (Veera).) After all, “[a] consumer’s burden of pleading causation in a 12 UCL action should hinge on the nature of the alleged wrongdoing rather than the specific prong 13 of the UCL the consumer invokes.” (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 14 1363.) 15 Therefore, the Court believes that actual reliance and materiality are relevant issues for 16 this case. But even for fraud-based consumer claims, materiality and reliance do not typically 17 present a difficult hurdle to class certification. “[A] party seeking restitution must ... prove that 18 the defendant “may have ... acquired” “money or property” “by means of [its] unfair 19 competition” or false advertising. (Bus. & Prof. Code, §§ 17203, 17535; [citations].)” (Downey 20 vy. Public Storage, Inc. (2020) 44 Cal.App.5th 1103, 1114-1115 (Downey).) In this regard, the 21 focus 22 25 is the “reasonable consumer” and whether the content of the challenged 24 advertisement is “likely to deceive” that “reasonable consumer” ([citations]), such 25 26 5 Plaintiff requests judicial notice of various materials that he contends demonstrate the materiality of the ARL’s requirements: legislative history materials (Exs. 1 and 2), federal 27 regulatory materials (Ex. 3, 10-14, and 16), orders in cases filed by the Federal Trade Commission (Exs. 4-9), and guidelines published by the Association of National Advertisers. 28 The Court GRANTS the unopposed request. (Evid. Code, § 452, subds. (b), (c), (d), & (h).) that there is no need for plaintiffs to prove that “individual” class members were actually, subjectively deceived or actually, subjectively relied on a deceptive advertisement ([Fletcher v. Sec. Pac. Nat’l Bank (1979) 23 Cal.3d 442, 451 [disclaiming need to prove “the individual’s lack of knowledge of the fraudulent practice in each transaction”); Davis-Miller v. Automobile Club of Southern California (2011) 201 Cal.App.4th 106, 121 [A representative plaintiff need not prove that members of the public were actually deceived by the practice, relied on the practice, or suffered damages.”’]; [citations]). 10 (Downey, supra, 44 Cal.App.5th at p. 1121.)° 11 Here, Plaintiff contends that the subscription flows and acknowledgement emails used in 12 connection with all three of the services at issue in this case were substantially similar, such that 13 their compliance with the ARL presents common issues. YouTube urges that there are material 14 differences between the services that destroy commonality or, at a minimum, require separate 15 subclasses “with proper representatives for each.” 16 As summarized in both sides’ briefs, YouTube has used one set of subscription flows and 17 acknowledgement emails for YouTube TV and another set for YouTube Music and YouTube 18 Premium. While the subscription flows are displayed in slightly different formats depending on 19 how the consumer enrolls (via desktop computer web browser, mobile browser, etc.) and what 20 subscription options the consumer chooses (free trial or straight-to-paid, etc.),’ the parties agree 21 that they can be grouped as follows: a “First YouTube TV Buy Cart” used from the launch of 22 YouTube TV in February 2017 until June 24, 2020 and a “Second YouTube TV Buy Cart” used 25 after that; a “First YouTube TV Acknowledgement Email” used from the launch of YouTube TV| 24 25 6 The same is not true with regard to Plaintiff's sixth cause of action for negligent 26 misrepresentation and seventh cause of action for fraud, which are not addressed in his motion. The Court will not certify a class as to these claims because they do raise individual issues of 27 reliance, and Plaintiff does not address how these issues could be effectively managed in a class action. 28 7 YouTube does not contend that any of these differences in the subscription flows are material. 10 until October 29, 2021 and a “Second YouTube TV Acknowledgement Email” used after that; a “First YouTube Music/Premium Buy Cart” shown from June 2016 until August 6, 2019 and a “Second YouTube Music/Premium Buy Cart” shown after that; and, finally, a single “YouTube Music/Premium Acknowledgment Email” used throughout the class period. (See Mot. at pp. 3— 12, Opp. at pp. 6-10.) Plaintiff alleges that the First YouTube TV Buy Cart he saw when he signed up for YouTube TV violated the ARL in eight different ways, while the First YouTube TV Acknowledgement Email he received violated the ARL in three different ways. He alleges that the other subscription flows and acknowledgement emails contained subsets of these same 10 violations. YouTube’s opposition summarizes these allegations in chart form: 11 12 13 14 15 16 17 18 19 20 21 22 25 24 25 26 27 28 8 Plaintiff describes the subscription flow as a “Checkout Page” versus a “Buy Cart”: the Court uses Defendants’ terminology for consistency with Defendants’ chart reproduced herein. 11 are Plaintiff claims that the TV Buy TV Buy Cart | Music/ Music/ Buy Cart, includes or is Cart #1 #2 Premium Buy Premium missing the following Feb. 2017 June 2020 Cart #1 Buy Cart #2 ARL-Compliant June 2016 Aug. 2019 Disclosure that: Subscription will continue Missing Includes Missing Includes until canceled? Recurring charges? Missing Missing Missing Missing 10 Amount will change? Does Not Does Not 11 Missing Missing Apply Apply 12 Length of the automatic Missing No No Allegation No Allegation 13 renewal term? 14 Minimum Purchase Missing No Allegation No Allegation No Allegation Obligation? 15 Cancellation limitations? Missing Missing Missing Missing 16 24-Hour Policy? Does Not Does Not 17 Missing Missing Apply Apply 18 Separate Checkbox? Missing Missing Missing Missing 19 TV Email #1 TV Email #2 Music/Premium Email 20 Feb. 2017 Oct. 2021 21 Subscription renews Missing Includes Includes monthly? 22, 23 Cancellation Policy? Missing Missing Missing 24 How to Cancel? Missing Missing Missing 25 26 27 28 12 In the Court’s view, because Plaintiff and other early YouTube TV subscribers were exposed to all of the alleged violations, the issues of whether the various disclosures identified by Plaintiff were in fact not provided as required under the ARL are common ones, at least for YouTube TV. For instance, Defendants state in their opposition that “in June 2020, YouTube TV advised subscribers that ‘By clicking “Start Trial,” you will be charged the price above monthly until you cancel. . .,” which is a slightly-different disclosure than later disclosures. But a factfinder could separately assess whether earlier and later subscribers suffered an ARL violation in this regard without great difficulty—and each question is common as to a large subset of the class. The use of subclasses would enable these separate inquiries: there is no need 10 to “forc[e] a classwide answer” as Defendants suggest. 11 Defendants do not explain how these limited (albeit relevant) differences among a few 12 subgroups of the putative class predominate over the many common issues that would be 13 determined as described above. Defendants, at oral argument, identified other differences among} 14 class members, but many of those differences do not materially affect liability for ARL 15 violations. For instance, whether a customer used YouTube TV after a free trial or stopped using 16 the service is not relevant to whether the ARL was violated by the acknowledgment emails and 17 Buy Cart disclosures that this customer would have seen. 18 The Court therefore finds that there are common liability issues for YouTube TV 19 subscribers, despite the evolution of disclosures over the relevant time period. To the extent 20 there are differences, the Court believes that the use of subclasses, based on individuals who saw 21 the same subscription flow and received the same acknowledgement email, will limit confusion 22 for a factfinder. The subclasses would be as follows: a) individuals who enrolled from February 25 2017 through June 23, 2020; b) those who enrolled from June 24, 2020 to October 28, 2021; and 24 c) those who enrolled from October 29, 2021 and later. 25 But the disclosures shown to YouTube Music and Premium subscribers are different, and 26 may involve somewhat-different ARL problems. In addition, the evaluation of reasonable 27 reliance by YouTube Music and Premium subscribers may well differ from the reasonable 28 reliance analysis for YouTube TV because the “target population[s]” for the services are 13 different. (See In re Vioxx Class Cases (2009) 180 Cal.App.4th 116, 130 (Vioxx) [the UCL “focuses on a reasonable consumer who is a member of the target population”].) Most importantly, the Court is concerned that if YouTube Music and Premium subscribers were part of the class, there would need to be numerous subclasses, each with its ow! alleged ARL violations at issue. The Court believes that a factfinder ultimately trying this case with all three products in the case likely would be confused by all the subclasses and separate alleged ARL violations. This would make the class action not “advantageous to the judicial process or its litigants.” (Sav-On Drug Stores, supra, 34 Cal 4th at p. 326.) b restitution 10 As for restitution, Plaintiff proposes two alternative theories of recovery: first, a “full 11 refund” methodology and, alternatively, a “price premium” methodology. 12 Plaintiffs “full refund” theory is based on section 17603 of the ARL, the “unconditional 13 gift provision.”? According to YouTube, that theory is no longer viable under Mayron, supra, 54| 14 Cal.App.5th 566. But Mayron addressed the gift provision solely in the context of standing, 15 holding that the provision “does not confer standing for a section 17200 cause of action” where 16 the plaintiff did not otherwise allege he suffered any loss due to the alleged violations of the 17 ARL. (/d. at pp. 574-576.) Mayron specifically emphasized that “eligibility for a remedy and 18 standards for causation under § 17200 are ‘wholly distinct.’ ” (/d. at p. 575, quoting Kwikset 19 Corp. vy. Superior Court (2011) 51 Cal.4th 310, 335-336 (Kwikset).) 20 21 ° That section provides: 22 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 25 purchase, without first obtaining the consumer’s affirmative consent as described 24 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 25 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, 26 bearing the cost of, or responsibility for, shipping any goods, wares, merchandise, 27 or products to the business. (Bus. & Prof. Code, § 17603.) 14 The Court is unaware of any published authority addressing whether the gift provision provides a basis for awarding a full refund as restitution in a consumer class action.!° While it agrees with Defendants that Mayron casts doubt on this theory, this is a merits issue capable of being resolved on a classwide basis. It is an issue on which Plaintiff will bear the burden, but his ability to do so is not foreclosed by YouTube’s authorities. (See Tobacco Cases II, supra, 240 Cal.App.4th at p. 792 [“We agree that Vioxx does not purport to set forth the exclusive measure of restitution potentially available in a UCL case. It remains, however, that plaintiffs had the burden of proving entitlement to an alternative measure of restitution proper under all the circumstances.”].)!! In any event, “[a]s a general rule if the defendant's liability can be 10 determined by facts common to all members of the class, a class will be certified even if the 11 12 13 ‘0 The Court acknowledges that class certification was denied on the basis that the gift provision 14 does not apply to services (and plaintiff failed to offer any other classwide theory of restitution) in Robinson v. OnStar, LLC (S.D.Cal. Jan. 22, 2020, No. 15-CV-1731 JLS (MSB)) 2020 15 U.S.Dist.LEXIS 10797, at *66-72 (Robinson). But Robinson reached that conclusion without analysis. In the Court’s view, this issue is not as clear as Robinson seems to assume, and it 16 should be fully briefed on the merits. Moreover, Robinson emphasized a lack of evidence that 17 the named plaintiff would not have subscribed to the service at issue if the required disclosures were provided. (See Robinson, supra, 2020 U.S.Dist.LEXIS 10797, at *70—72 [emphasizing that] 18 there was no evidence the plaintiff would not have subscribed if the required disclosures were 19 provided; “an aggrieved party may be entitled to full restitution if she proves either that the defendant’s product had no value or that she would not have purchased the defendant’s product 20 absent the alleged misrepresentations”].) Here, as discussed below, there is such evidence. 21 ‘| In particular, YouTube contends that Mayron held that the gift provision “creates a penalty,” 22 which cannot form the basis for restitution. But this is not what Mayron held. Rather—and 25 again, in the context of addressing standing—t stated, “The unconditional gift provision of the automatic renewal law creates a right to retain a product already received. That right is a 24 consequence of violating the statute.” (Mayron, supra, 54 Cal.App.Sth at p. 575.) Mayron went on to analogize those circumstances to “[a]n example” in which the opinion “suppose[d] the 25 automatic renewal law imposed a statutory penalty of $1,000 for each violation.” (Ibid.) It 26 explained why standing was not established by either the gift provision or an actual “penalty”: “An after-the-fact right provided by the Legislature cannot amount to causation. Nor should a 27 penalty imposed on a vendor be viewed as the source of injury to a consumer.” (bid., italics added.) But, again, Mayron specifically noted that “eligibility for a remedy” under a statute (like| 28 the gift provision) and a loss caused by the defendant’s conduct sufficient to establish standing under the UCL are “wholly distinct,” citing Kwikset, supra, 51 Cal.4th 310, 335-336. 15 members must individually prove their damages.' [Citations.]” (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1021-1022.) Since certification is appropriate based on Plaintiffs primary, “full refund” theory, the Court need not address his alternative, “price premium” methodology at this juncture. (See Apple Inc. v. Superior Court (2018) 19 Cal.App.Sth 1101, 1120 [a court “may find that it need not rule on the admissibility of certain expert opinion evidence offered in connection with class certification because it is irrelevant or unnecessary for its decision”].) The Court does acknowledge YouTube’s argument that the proposed conjoint survey methodology proposed by Plaintiff would need to be tailored to the specific theories of liability at issue—of which there are 10 several. Should Plaintiff's “full refund” theory fail on the merits, this will need to be addressed. 11 At the moment, the Court merely notes that it may be possible for Plaintiff to show that the 12 hassle and inconvenience caused by YouTube’s alleged ARL violations reduced the value of its 13 subscriptions to consumers by a common amount. (See Robinson, supra, 2020 U.S.Dist.LEXIS 14 10797, at *72, fn. 11 [granting plaintiff leave to renew her motion for class certification based on 15 this theory].) But for now, Plaintiff's full refund theory raises essentially a pure legal issue, 16 which is amenable to classwide resolution. 17 Down the road, it might make sense to have targeted—and early—motions for summary 18 adjudication as to the viability of the “full refund” and “price premium” damage theories. (See 19 Code Civ. Proc., § 437c(t).) The Court believes that this issue should be decided after class 20 certification, so as to avoid any “one-way intervention” problems. (See Fireside Bank v. 21 Superior Court (2007) 40 Cal. 4th 1069, 1081.) But that is not something that has to be decided 22 today. 25 Cc. conclusion 24 Plaintiff has established that common issues predominate with regard to whether putative 25 class members experienced ARL violations and whether such violations were material, at least 26 with regard to the service to which he subscribed (YouTube TV). YouTube has identified some 27 relevant differences in the potential violations to which putative class members were exposed, 28 but this could be addressed through the use of subclasses as described above. Finally, Plaintiff's 16 primary, “full refund” theory of restitution is amenable to classwide resolution, so the Court need| not address his alternative, “price premium” methodology right now. 2. Adequacy and Typicality “Adequacy of representation depends on whether the plaintiff's attorney is qualified to conduct the proposed litigation and the plaintiff's interests are not antagonistic to the interests of the class.” (McGhee v. Bank of America (1976) 60 Cal.App.3d 442, 450.) The fact that a class representative does not personally incur all of the damages suffered by each different class member does not necessarily preclude the representative from providing adequate representation to the class. (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 238, disapproved of 10 on another ground by Hernandez v. Restoration Hardware, Inc. (2018) 4 Cal.5th 260.) Only a 11 conflict that goes to the very subject matter of the litigation will defeat a party’s claim of 12 representative status. (/bid.) 13 Here, Plaintiff has the same interest in maintaining this action as any class member would 14 have. Further, he has hired experienced counsel. Plaintiff has sufficiently demonstrated 15 adequacy of representation, which YouTube does not dispute. 16 “Although the questions whether a plaintiff has claims typical of the class and will be 17 able to adequately represent the class members are related, they are not synonymous.” (Martinez| 18 v. Joe’s Crab Shack Holdings (2014) 231 Cal.App.4th 362, 375.) “The test of typicality is 19 whether other members have the same or similar injury, whether the action is based on conduct 20 which is not unique to the named plaintiffs, and whether other class members have been injured 21 by the same course of conduct.” (/bid., quoting Seastrom v. Neways, Inc. (2007) 149 22 Cal.App.4th 1496, 1502.) 25 As discussed above, the named plaintiff, Mr. Dutcher, was exposed to a subscription flow| 24 and acknowledgement email that contained all of the violations alleged in this case, at least for 25 YouTube TV. So in that sense, his experience is typical of the entire class (as redefined by the 26 Court). However, the typicality of Mr. Dutcher’s injury is also key here. An action under the 27 unfair competition statutes 28 17 can be brought only “by a person who has suffered injury in fact and has lost money or property as a result of the unfair competition.” (§ 17204.) It is not enough that a plaintiff lost money; to have standing, there must be a causal link between the unlawful practice and the loss. (Hall v. Time, Inc. (2008) 158 Cal.App.4th 847, 849 ... [We hold the phrase ‘as a result of in the [unfair competition law] imposes a causation requirement; that is, the alleged unfair competition must have caused the plaintiff to lose money or property.”].) (Mayron, supra, 54 Cal.App.5th at p. 574.) Similarly, to be adequate and typical of the class, a 9 putative class member must have suffered the same type of harm that he or she contends the 10 other class members did: 11 The class representative must be situated similarly to class members. (Classen v. 12 Weller (1983) 145 Cal.App.3d 27, 46 ....) “It is the fact that the class plaintiffs 13 claims are typical and his representation of the class adequate which gives 14 legitimacy to permitting him to bind class members who have notice of the 15 action. [Citations.]” (Trotsky v. Los Angeles Fed. Sav. & Loan Assn. (1975) 48 16 Cal.App.3d 134, 146 ....) Further, “there can be no class certification unless it is 17 determined by the trial court that similarly situated persons have sustained 18 damage. There can be no cognizable class unless it is first determined that 19 members who make up the class have sustained the same or similar damage.” 20 (Guidotti v. County of Yolo(1989) 214 Cal.App.3d 1552, 1566-1567 21 ..; also Collins v. Safeway Stores, Inc., supra, 187 Cal.App.3d at pp. 72-73; 22 cf. Spoon v. Superior Court (1982) 130 Cal.App.3d 735, 741 ....) 25 24 (Caro v. Procter & Gamble Co. (1993) 18 Cal.App.4th 644, 663-664 (Caro).) 25 Plaintiff therefore must provide evidence that he suffered some harm from the violations 26 at issue, and that he suffered similar harm to other putative class members. (Defendants are 27 incorrect in arguing that it must be the same harm.) The type of harm that suffices in an ARL 28 case similar to this one is discussed in Mayron: 18 The statutory violations alleged by plaintiff are that Google did not provide required disclosures and did not make it easy enough to cancel the subscribed service. To establish standing, plaintiff would also need to allege that he ordered increased Google Drive storage but would not have done so had the disclosures been provided, or that he would have cancelled the additional storage had it been easier to do so. (See, e.g., Kwikset[, supra,] 51 Cal.4th [at p.] 317 ... [plaintiffs who can truthfully allege they were deceived by a product’s label into purchasing the product and would not have purchased it otherwise, have “ ‘lost money or 2» 10 property within the meaning of § 17204].) But plaintiff makes no such 11 allegation, which suggests he would have purchased and maintained the added 12 Google Drive capacity even if Google had complied with the automatic renewal 13 law. The complaint therefore does not show a causal link between plaintiff's 14 payments and Google’s alleged violations. (Daro v. Superior Court (2007) 151 15 Cal.App.4th 1079, 1098 ... [“In short, there must be a causal connection between 16 the harm suffered and the unlawful business activity. That causal connection is 17 broken when a complaining party would suffer the same harm whether or not a 18 defendant complied with the law.”].) 19 (Mayron, supra, 54 Cal.App.5th at pp. 574-575.) 20 Here, Mr. Dutcher submits a declaration stating that he “was confused about the terms 21 and conditions of the free trial” of YouTube TV that he signed up for “and its conversion to a 22 paid subscription, and I was under the impression that the free trial would last for one month 25 rather than just two weeks. Additionally, I was surprised by the price charged, which I had not 24 expected.” (Decl. of Lance Dutcher ISO Mot., J 6.) When he attempted to cancel, he could only 25 do so after fruitlessly searching YouTube’s web site for cancelation instructions and ultimately 26 calling YouTube’s customer service line. (See id., f{ 7-8; see also Decl. of Amit Gressel ISO 27 Opp., Ex. 3, Dutcher Depo. Trans. at pp. 77-80, 101-102 [YouTube’s customer service 28 representative cancelled Plaintiff's subscription in one call].) 19 YouTube denied Mr. Dutcher’s refund request, because he “