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1 CHRISTOPHER CHIOU, SBN 233587
WILSON SONSINI GOODRICH & ROSATI
2 Professional Corporation
953 East Third Street, Suite 100
3 Los Angeles, CA 90013
Telephone: 323-210-2900
4 Email: cchiou@wsgr.com
5 Attorneys for Defendants YouTube, LLC
6 and Google LLC
[Additional Counsel on Signature Page]
7
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
FOR THE COUNTY OF LOS ANGELES
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11
COORDINATION PROCEEDING SPECIAL JUDICIAL COUNCIL COORDINATION
12 TITLE [RULE 3.400] PROCEEDING NO. 5255
13 SOCIAL MEDIA CASES For Filing Purposes: 22STCV21355
14 THIS DOCUMENT RELATES TO:
Judge: Hon. Carolyn B. Kuhl
SSC-12
15 (Christina Arlington Smith, et al. v. TikTok
Inc., et al., Case No. 22STCV21355) DEFENDANTS’ NOTICE OF DEMURRER
16
AND DEMURRER TO CLAIMS FOR SEX
17 (A.S. et al. v. Meta Platforms, Inc. et al., Case No. AND AGE DISCRIMINATION AND NON-
22STCV28202) PRODUCT NEGLIGENT FAILURE TO
18 WARN ASSERTED IN PLAINTIFFS’
(Glenn-Mills v. Meta Platforms, Inc. et al., Case MASTER COMPLAINT AND
19 No. 23SMCV03371) IDENTIFIED SHORT-FORM
20 COMPLAINTS
(J.S. et al. v. Meta Platforms, Inc. et al., Case No.
21 CV 2022-1472) [Filed concurrently with Declaration of
Brian M. Willen]
22 (K.K. et al. v. Meta Platforms, Inc. et al., Case No.
23SMCV03371) Date: March 20, 2024
23
Time: 1:45 p.m.
(K.L. et al. v. Meta Platforms, Inc. et al., Case No. Dept.: SSC-12
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CIV SB 2218921)
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(N.S. et al. v. Snap Inc., Case No. 22CV019089)
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(P.F. et al. v. Meta Platforms, Inc. et al., Case No.
27 23SMCV03371)
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DEM. TO CLAIMS FOR SEX AND AGE DISCRIMINATION AND NON-PRODUCT NEGLIGENT FAILURE TO WARN; Case No. 22STCV21355
1 TO PLAINTIFFS AND THEIR ATTORNEYS OF RECORD:
2 PLEASE TAKE NOTICE THAT on March 20, 2024, at 1:45 p.m., or as soon thereafter as the
3 matter may be heard, in Department 12 of the Superior Court for the County of Los Angeles, located at
4 312 North Spring Street, Los Angeles, California 90012, Defendants Meta Platforms, Inc. f/k/a Facebook,
5 Inc.; Instagram, LLC; Facebook Payments, Inc.; Siculus, Inc.; Facebook Operations, LLC; Facebook
6 Technologies, LLC; and Facebook Holdings, LLC (collectively, “Meta” or the “Meta Defendants”);
7 Defendant Snap, Inc. (“Snap”); Defendants ByteDance Ltd.; ByteDance Inc.; TikTok Ltd.; TikTok LLC;
8 and TikTok Inc. (collectively, “TikTok” or the “TikTok Defendants”); and Defendants Google LLC and
9 YouTube, LLC (collectively, “YouTube” or the “YouTube Defendants”) (and, together with all
10 Defendants, “Defendants”) will and hereby do demur to Plaintiffs’ Master Complaint (Personal Injury)
11 (“MC”) and Plaintiffs’ below-identified Short-Form Complaints (“SFCs”) (collectively, the “Operative
12 Pleadings”):
13 1. First Amended Short Form Complaint For Damages And Demand For Jury Trial, A.S. ex
14 rel. E.S. v. Meta Platforms, Inc., et al., Case No. 22STCV28202 (L.A. Super. Ct. filed
15 Jan. 5, 2024) (“A.S. SFC”).
16 2. First Amended Short Form Complaint For Damages And Demand For Jury Trial, Glenn-
17 Mills v. Meta Platforms, Inc., et al., Case No. 23SMCV03371 (L.A. Super. Ct. filed Jan.
18 5, 2024) (“Glenn-Mills SFC”).
19 3. First Amended Short Form Complaint For Damages And Demand For Jury Trial, K.L. ex
20 rel. S.S. v. Meta Platforms, Inc., et al., Case No. CIV SB 2218921 (L.A. Super. Ct. filed
21 Jan. 5, 2024) (“K.L. SFC”).
22 4. First Amended Short Form Complaint For Damages And Demand For Jury Trial, N.S. ex
23 rel. Z.H. v. Snap Inc., Case No. 22CV019089 (L.A. Super. Ct. filed Jan. 5, 2024) (“N.S.
24 SFC”).
25 5. First Amended Short Form Complaint For Damages And Demand For Jury Trial, P.F. ex
26 rel. A.F. v. Meta Platforms, Inc., et al., Case No. 23SMCV03371 (L.A. Super. Ct. filed
27 Jan. 5, 2024) (“P.F. SFC”).
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DEM. TO CLAIMS FOR SEX AND AGE DISCRIMINATION AND NON-PRODUCT NEGLIGENT FAILURE TO WARN; Case No. 22STCV21355
1 6. Second Amended Short Form Complaint For Damages And Demand For Jury Trial, J.S.
2 and D.S. ex rel. L.H.S. v. Meta Platforms, Inc., et al., Case No. CV2022-1472 (L.A.
3 Super. Ct. filed Jan. 9, 2024) (“J.S. SFC”).
4 7. Second Amended Short Form Complaint For Damages And Demand For Jury Trial, K.K.
5 ex rel. S.K. v. Meta Platforms, Inc., et al., Case No. 23SMCV03371 (L.A. Super. Ct. filed
6 Jan. 17, 2024) (“K.K. SFC”).
7 This demurrer is made on the grounds that the Operative Pleadings do not state facts sufficient to
8 constitute a cause of action against Defendants.
9 Defendants base this motion on this notice, the demurrer and memorandum of points and
10 authorities, and all other pleadings and papers on file in this action, and on such other arguments or
11 evidence that may be submitted to the Court prior to the hearing.
12
DATED: January 25, 2024 WILSON SONSINI GOODRICH & ROSATI PC
13
14
15 By: /s/ Christopher Chiou
Christopher Chiou
16
17 CHRISTOPHER CHIOU, SBN 233587
cchiou@wsgr.com
18 953 East Third Street, Suite 100
Los Angeles, CA 90013
19 Telephone: 323-210-2900
Email: cchiou@wsgr.com
20
Attorneys for Defendants YouTube, LLC and Google
21 LLC
22 [Additional Counsel on Signature Page]
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DEM. TO CLAIMS FOR SEX AND AGE DISCRIMINATION AND NON-PRODUCT NEGLIGENT FAILURE TO WARN; Case No. 22STCV21355
1 DEMURRER
2 Defendants demur to the Operative Pleadings as follows:
3 Demurrer to Operative Pleadings
4 1. The Operative Pleadings are defective for failure to state facts sufficient to constitute a
5 cause of action against Defendants. Civ. Proc. Code § 430.10(e).
6 Demurrer to Tenth Cause of Action
7 (SEX AND AGE DISCRIMINATION)
8 (Asserted in A.S. SFC Against Snap Only)
9 (Asserted in Glenn-Mills SFC Against All Defendants)
10 (Asserted in K.K. SFC Against the Meta and TikTok Defendants)
11 (Asserted in K.L. SFC Against the Meta, Snap, and TikTok Defendants)
12 (Asserted in N.S. SFC Against Snap Only)
13 (Asserted in P.F. SFC Against the Meta and TikTok Defendants)
14 2. Plaintiffs’ tenth cause of action is subject to demurrer for failure to state facts sufficient to
15 constitute a cause of action against Defendants and because Plaintiffs have abandoned the cause of action.
16 Plaintiffs’ sex and age discrimination claim fails because (1) Plaintiffs previously declined to defend the
17 claim in the MC, and should not now be allowed to rely on allegations in the MC to reassert the claim in
18 Plaintiffs’ amended SFCs; (2) Plaintiffs fail to establish standing to bring a claim under California’s Unruh
19 Civil Rights Act, Civ. Code § 51(b); (3) Plaintiffs fail to plead intentional discrimination in violation of
20 the Unruh Act; (4) Plaintiffs’ claim is barred by Section 230 of the Communications Decency Act, 47
21 U.S.C. § 230; and (5) Plaintiffs’ claim is barred by the First Amendment to the U.S. Constitution and the
22 Liberty of Speech Clause in the California Constitution.
23 Demurrer to Additional Counts Asserted in SFCs
24 (NON-PRODUCT NEGLIGENT FAILURE TO WARN)
25 (Asserted in A.S. SFC Against the Meta, Snap, and TikTok Defendants)
26 (Asserted in Glenn-Mills SFC Against All Defendants)
27 (Asserted in J.S. SFC Against the Meta, TikTok, and YouTube Defendants)
28 (Asserted in K.K. SFC Against the Meta and TikTok Defendants)
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DEM. TO CLAIMS FOR SEX AND AGE DISCRIMINATION AND NON-PRODUCT NEGLIGENT FAILURE TO WARN; Case No. 22STCV21355
1 (Asserted in K.L. SFC Against the Meta, Snap, and TikTok Defendants)
2 (Asserted in N.S. SFC Against Snap Only)
3 (Asserted in P.F. SFC Against the Meta and TikTok Defendants)
4 3. Plaintiffs’ additional cause of action for non-product negligent failure to warn is subject to
5 demurrer for failure to state facts sufficient to constitute a cause of action against Defendants. Plaintiffs’
6 non-product failure to warn claim fails because (1) Plaintiffs do not allege facts sufficient to give
7 Defendants fair notice of their claim; (2) Plaintiffs fail to plead a non-product failure to warn claim; (3)
8 Plaintiffs’ claim is barred by Section 230 of the Communications Decency Act, 47 U.S.C. § 230; and (4)
9 Plaintiffs’ claim is barred by the First Amendment to the U.S. Constitution and the Liberty of Speech
10 Clause in the California Constitution.
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DEM. TO CLAIMS FOR SEX AND AGE DISCRIMINATION AND NON-PRODUCT NEGLIGENT FAILURE TO WARN; Case No. 22STCV21355
1 TABLE OF CONTENTS
2 MEMORANDUM OF POINTS AND AUTHORITIES .............................................................. 11
3 I. INTRODUCTION ............................................................................................................ 11
4 II. BACKGROUND .............................................................................................................. 11
5 III. LEGAL STANDARD ....................................................................................................... 13
6 IV. ARGUMENT .................................................................................................................... 13
7 A. Plaintiffs’ Effort to Revive Their Unruh Act Claim Fails as a Matter of Law ..... 13
8 1. Plaintiffs Abandoned the Argument that the Master Complaint
9 Adequately Alleges an Unruh Act Claim. ................................................ 14
10 2. Plaintiffs’ Unruh Act Claim Fails for Lack of Standing. .......................... 14
11 3. Plaintiffs Fail to State a Claim for Violation of the Unruh Act. ............... 15
12 4. Plaintiffs’ Unruh Act Claims Are Barred by Section 230. ....................... 19
13 5. Plaintiffs’ Unruh Act Claims Are Barred by the First Amendment. ........ 21
14 B. Plaintiffs Fail to State a Claim for Non-Product Negligent Failure to Warn........ 22
15 V. CONCLUSION ................................................................................................................. 26
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DEM. TO CLAIMS FOR SEX AND AGE DISCRIMINATION AND NON-PRODUCT NEGLIGENT FAILURE TO WARN; Case No. 22STCV21355
1 TABLE OF AUTHORITIES
Page(s)
2
CASES
3
303 Creative LLC v. Elenis,
4 143 S. Ct. 2298 (2023) .......................................................................................................22
5 Angelucci v. Century Supper Club,
41 Cal. 4th 160 (2007) .......................................................................................................14
6
Bill v. Super. Ct.,
7 137 Cal. App. 3d 1002 (1982) ...........................................................................................26
8 Bride v. Snap Inc.,
2023 WL 2016927 (C.D. Cal. Jan. 10, 2023) ....................................................................26
9
Brown v. USA Taekwondo,
10 11 Cal. 5th 204 (2021) .......................................................................................................24
11 Cohn v. Corinthian Coll., Inc.,
169 Cal. App. 4th 523 (2008) ............................................................................................18
12
Davidson v. City of Westminster,
13 32 Cal. 3d 197 (1982) ........................................................................................................24
14 Divino Grp. LLC v. Google LLC,
2022 WL 4625076 (N.D. Cal. Sept. 30, 2022) ..................................................................19
15
Doe II v. MySpace Inc.,
16 175 Cal. App. 4th 561 (2009) ............................................................................................13
17 Doe v. City of Los Angeles,
42 Cal. 4th 531 (2007) .......................................................................................................22
18
Domen v. Vimeo, Inc.,
19 433 F. Supp. 3d 592 (S.D.N.Y. 2020)................................................................................19
20 Dyroff v. Ultimate Software Grp., Inc.,
2017 WL 5665670 (N.D. Cal. Nov. 26, 2017),
21 aff’d, 934 F.3d 1093 (9th Cir. 2019) ..................................................................................25
22 Dyroff v. Ultimate Software Grp., Inc.,
934 F.3d 1093 (9th Cir. 2019) ...........................................................................................24
23
Ebeid v. Facebook, Inc.,
24 2019 WL 2059662 (N.D. Cal. May 9, 2019) .....................................................................17
25 Fair Hous. Council v. Roommates.Com, LLC,
521 F.3d 1157 (9th Cir. 2008) ...........................................................................................20
26
Fed. Agency of News LLC v. Facebook, Inc.,
27 432 F. Supp. 3d 1107 (N.D. Cal. 2020) .............................................................................19
28
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DEM. TO CLAIMS FOR SEX AND AGE DISCRIMINATION AND NON-PRODUCT NEGLIGENT FAILURE TO WARN; Case No. 22STCV21355
1 Fischl v. Pac. Life Ins. Co.,
94 Cal. App. 5th 108 (2023) ..............................................................................................14
2
Gayer v. Polk Gulch, Inc.,
3 231 Cal. App. 3d 515 (1991) .......................................................................................16, 18
4 Harris v. Cap. Growth Invs. XIV,
52 Cal. 3d 1142 (1991) ................................................................................................17, 19
5
Hart v. Cult Awareness Network,
6 13 Cal. App. 4th 777 (1993) ..............................................................................................21
7 Herrick v. Grindr LLC,
765 F. App’x 586 (2d Cir. 2019) .......................................................................................26
8
In re Facebook, Inc.,
9 625 S.W.3d 80 (Tex. 2021)................................................................................................25
10 In re Soc. Media Adolescent Addiction/Pers. Inj. Prods. Liab. Litig.,
__ F. Supp. 3d __, 2023 WL 7524912 (N.D. Cal. Nov. 14, 2023) ..............................24, 25
11
Ingels v. Westwood One Broad. Servs., Inc.,
12 129 Cal. App. 4th 1050 (2005) ..........................................................................................21
13 Jane Doe No. 14 v. Internet Brands, Inc.,
2016 WL 11824793 (C.D. Cal. Nov. 14, 2016).................................................................24
14
Kious v. Teva Pharms. USA, Inc.,
15 2016 WL 9559038 (W.D. Okla. Dec. 8, 2016) ..................................................................23
16 Koebke v. Bernardo Heights Country Club,
36 Cal. 4th 824 (2005) .......................................................................................................15
17
Kuciemba v. Victory Woodworks, Inc.,
18 531 P.3d 924 (2023)...........................................................................................................25
19 L.W. v. Snap Inc.,
2023 WL 3830365 (S.D. Cal. June 5, 2023)......................................................................26
20
Liapes v. Facebook, Inc.,
21 95 Cal. App. 5th 910 (2023) ............................................................................16, 18, 19, 20
22 Ludgate Ins. Co. v. Lockheed Martin Corp.,
82 Cal. App. 4th 592 (2000) ..............................................................................................22
23
Madrid v. Perot Sys. Corp.,
24 130 Cal. App. 4th 440 (2005) ............................................................................................13
25 Martinez v. Cot’n Wash, Inc.,
81 Cal. App. 5th 1026 (2022) ......................................................................................15, 17
26
McCollum v. CBS, Inc.,
27 202 Cal. App. 3d 989 (1988) .............................................................................................21
28
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DEM. TO CLAIMS FOR SEX AND AGE DISCRIMINATION AND NON-PRODUCT NEGLIGENT FAILURE TO WARN; Case No. 22STCV21355
1 Melton v. Boustred,
183 Cal. App. 4th 521 (2010) ............................................................................................24
2
Miami Herald Publ’g Co. v. Tornillo,
3 418 U.S. 241 (1974) ...........................................................................................................21
4 NetChoice, LLC v. Att’y Gen., Fla.,
34 F.4th 1196 (11th Cir. 2022),
5 cert. granted in part,
Moody v. NetChoice, LLC, 2023 WL 6319654 (U.S. Sept. 29, 2023)...............................21
6
O’Grady v. Merch. Exch. Prods., Inc.,
7 41 Cal. App. 5th 771 (2019) ........................................................................................16, 22
8 Olivia N. v. Nat’l Broad. Co.,
126 Cal. App. 3d 488 (1981) .............................................................................................26
9
Osborne v. Yasmeh,
10 1 Cal. App. 5th 1118 (2016) ..............................................................................................14
11 Prager Univ. v. Google LLC,
85 Cal. App. 5th 1022 (2022) ..........................................................................19, 20, 21, 25
12
Ramirez v. Wong,
13 188 Cal. App. 4th 1480 (2010) ..........................................................................................16
14 Regents of Univ. of Cal. v. Super. Ct.,
4 Cal. 5th 607 (2018) .........................................................................................................24
15
Scripps Clinic v. Super. Ct.,
16 108 Cal. App. 4th 917 (2003) ............................................................................................18
17 State ex rel. Bowen v. Bank of Am. Corp.,
126 Cal. App. 4th 225 (2005) ............................................................................................13
18
Sunrise Country Club Ass’n v. Proud,
19 190 Cal. App. 3d 377 (1987) .......................................................................................15, 17
20 Tarasoff v. Regents of Univ. of Cal.,
17 Cal. 3d 425 (1976) ........................................................................................................23
21
Taylor v. Nabors Drilling USA, LP,
22 222 Cal. App. 4th 1228 (2014) ..........................................................................................14
23 Turner v. Ass’n of Am. Med. Colls.,
167 Cal. App. 4th 1401 (2008) ....................................................................................17, 18
24
Twitter, Inc. v. Taamneh,
25 598 U.S. 471 (2023) .....................................................................................................18, 24
26 U.S. W. Falun Dafa Ass’n v. Chinese Chamber of Com.,
163 Cal. App. 4th 590 (2008) ............................................................................................21
27
White v. Square, Inc.,
28 7 Cal. 5th 1019 (2019) .......................................................................................................14
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DEM. TO CLAIMS FOR SEX AND AGE DISCRIMINATION AND NON-PRODUCT NEGLIGENT FAILURE TO WARN; Case No. 22STCV21355
1 Wholesale Elec. Antitrust Cases I & II,
147 Cal. App. 4th 1293, 1298–99 (2007) ..........................................................................13
2
Young v. Facebook, Inc.,
3 790 F. Supp. 2d 1110 (N.D. Cal. 2011) .............................................................................18
4 Ziencik v. Snap, Inc.,
2023 WL 2638314 (C.D. Cal. Feb. 3, 2023)......................................................................25
5
STATUTES AND CONSTITUTIONAL PROVISIONS
6
47 U.S.C. § 230 ...................................................................................................................... passim
7
Civ. Code § 51(b)................................................................................................................... passim
8
Civ. Proc. Code § 425.10 ...................................................................................................13, 22, 23
9
Civ. Proc. Code § 430.10 .........................................................................................................13, 14
10
U.S. Const., amend. I ............................................................................................................. passim
11
MISCELLANEOUS
12
Rutter Group, Cal. Prac. Guide: Civ. Proc. Before Trial § 6:127 (June 2023 Update) .................23
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DEM. TO CLAIMS FOR SEX AND AGE DISCRIMINATION AND NON-PRODUCT NEGLIGENT FAILURE TO WARN; Case No. 22STCV21355
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 Plaintiffs in the seven identified cases filed amended SFCs that purport to assert claims for: (1) sex
4 and age discrimination under California’s Unruh Civil Rights Act, which Plaintiffs withdrew from the
5 SFCs that were the subject of Defendants’ prior demurrer, and (2) “non-product negligent failure to warn,”
6 which Plaintiffs did not assert in the MC. These claims are procedurally improper and fail on the merits.
7 The Court should dismiss Plaintiffs’ Unruh Act claim because Plaintiffs, having previously chosen
8 not to defend the general Unruh Act allegations in the MC in response to Defendants’ demurrer, offer no
9 allegations whatsoever in the amended SFCs to support any claim of discrimination. But even if Plaintiffs
10 can rely on the MC here, they fail to state any legally viable Unruh Act claim for several reasons: (1)
11 Plaintiffs lack standing because they have not alleged that they personally suffered discrimination at
12 Defendants’ hands; (2) Plaintiffs’ allegations regarding Defendants’ content recommendations do not
13 amount to intentional discrimination in violation of the Unruh Act; and (3) Plaintiffs’ effort to state an
14 Unruh Act claim based on the theory that Defendants used demographic information to recommend
15 harmful content is barred by Section 230 and the First Amendment.
16 Plaintiffs’ “non-product negligent failure to warn” claim is similarly improper. Though it is
17 presented as a Plaintiff-specific claim solely in the SFCs, the SFCs offer no allegations to explain the basis
18 of the claim, much less to support it. Plaintiffs’ one-line assertion of the claim is insufficient even under
19 the most liberal of notice pleading standards. And even if the basis for this newly asserted claim were
20 discernible, the claim would fail on the merits because Plaintiffs have failed to allege a special relationship
21 or misfeasance, and because the claim is barred by Section 230 and the First Amendment.
22 II. BACKGROUND
23 Plaintiffs previously selected three SFCs that were the focus of the initial demurrer briefing. Two
24 of the three identified SFCs asserted a cause of action for “sex and age discrimination pursuant to
25 California’s Unruh Civil Rights Act, and other state laws” (MC ¶ 1015 (Count 10)).1 Neither these SFCs
26 nor the MC asserted a cause of action for non-product negligent failure to warn.
27
1
See Short Form Complaint For Damages And Demand For Jury Trial, J.P. and R.P. ex rel. M.P. v. Meta
28 Platforms, Inc., et al., Case No. 22STCV26778 (L.A. Super. Ct. filed June 14, 2023) (“J.P. SFC”) at 7;
11
DEM. TO CLAIMS FOR SEX AND AGE DISCRIMINATION AND NON-PRODUCT NEGLIGENT FAILURE TO WARN; Case No. 22STCV21355
1 Defendants demurred to Plaintiffs’ MC and selected SFCs on July 14, 2023. That demurrer
2 explained that Plaintiffs’ Unruh Act claim failed for numerous reasons. Dem. 8, 48, 92–96. Instead of
3 responding to those arguments, Plaintiffs withdrew the Unruh Act claim from the two SFCs that asserted
4 it. Opp. 75. The Court ruled on Defendants’ demurrer on October 13, 2023, sustaining it as to Plaintiffs’
5 product liability and various other claims (Counts 1–4, 6, 8, and 9), and overruling it as to Plaintiffs’
6 general negligence and fraudulent concealment claims (Counts 5 and 7) (the “Order”).
7 In January 2024, Plaintiffs filed amended SFCs that, in relevant part: (1) continued to assert the
8 Unruh Act claim that Plaintiffs withdrew during the initial round of demurrer briefing;2 and (2) asserted—
9 for the first time—a cause of action for “non-product negligent failure to warn.”3 These amended SFCs
10 contained no new allegations purporting to support either claim. In light of Plaintiffs’ amendments, the
11 Parties agreed that Defendants should be permitted to demur to and/or move to strike those claims as
12 asserted in the amended SFCs.4 See Jan. 12, 2024 Joint Status Conference Statement at 25.5
13 The SFCs at issue incorporate the MC allegations by reference. E.g., A.S. SFC at 1. With respect
14 to the Unruh Act claim, the MC conclusorily alleges that “Defendants are engaged in discriminatory
15
Amended Short Form Complaint For Damages And Demand For Jury Trial, Cramblet ex rel. M.C. v. Meta
16 Platforms, Inc., et al., Case No. 22STCV40543 (L.A. Super. Ct. filed June 15, 2023) (“M.C. SFC”) at 7.
2
17 A.S. SFC at 7; Glenn-Mills SFC at 7; K.K. SFC at 7; K.L. SFC at 7; N.S. SFC at 7; P.F. SFC at 7.
3
A.S. SFC at 8; Glenn-Mills SFC at 8; J.S. SFC at 8; K.K. SFC at 8; K.L. SFC at 8; N.S. SFC at 8; P.F.
18 SFC at 8. All seven SFCs continue to assert claims for negligence (Count 5) against all Defendants, e.g.,
19 A.S. SFC at 6, and five assert claims for fraudulent concealment against Meta, id.; Glenn-Mills SFC at 6;
K.K. SFC at 6; K.L. SFC at 6; J.S. SFC at 6. Defendants expressly raise, and hereby preserve, the
20 arguments against those claims made in the original demurrer. Additionally, Plaintiffs continue to assert
other claims under California law (e.g., product liability) that the Court dismissed in its demurrer Order.
21 Defendants request that the Court’s earlier ruling be applied to the SFCs subject to the instant Demurrer.
4
22 The Court permitted Defendants to move to strike allegations regarding third-party misconduct and
online “challenges” (i.e., injuries identified in footnote 1 of the Order) in the same seven SFCs, and related
23 allegations in the MC. Tr. of Proceedings of Nov. 7, 2023 at 18–23; Tr. of Proceedings of Dec. 7, 2023
at 28. That motion is filed concurrently with this Demurrer.
24
5
The J.S. SFC also alleges injuries related to use of an Oculus headset. See J.S. SFC at 5. On June 16,
25 2023, via CaseAnywhere, this Court approved the Parties’ proposal to defer demurrer briefing on the
Oculus allegations. To the best of Meta’s knowledge, the J.S. plaintiffs remain the only plaintiffs asserting
26 Oculus-related claims. Meta reserves its right to seek to demur to the Oculus claims at an appropriate
27 stage of these proceedings, but at this time, given the narrow parameters of the instant demurrer and
concurrent motion to strike, Meta believes that deferral of briefing as to the Oculus claims continues to be
28 appropriate.
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DEM. TO CLAIMS FOR SEX AND AGE DISCRIMINATION AND NON-PRODUCT NEGLIGENT FAILURE TO WARN; Case No. 22STCV21355
1 practices” by “programming[] and operati[ng]” “recommendation technologies in a manner that
2 discriminates against users based on their age, gender, and other protect [sic] class characteristics.” MC
3 ¶ 1015. Plaintiffs contend that by “intentionally directing harmful content, including content related to
4 eating disorders, to young girls and young women because of their gender and age,” Defendants “deny
5 girls and young women the full and equal accommodations” of Defendants’ online services. Id.
6 ¶ 1020. None of the SFCs that assert Unruh Act claims against Defendants include any supporting
7 allegations regarding Defendants’ alleged discrimination. Rather, they rely on the same generalized
8 allegations in the MC, as did the two SFCs where the Plaintiffs chose to voluntarily dismiss their claims.
9 The MC does not assert any claim for “non-product negligent failure to warn,” and the amended SFCs
10 raise this claim solely by stating the name of the cause of action while offering no explanation of the
11 nature of the claim or any supporting factual allegations. Insofar as Plaintiffs purport to base this claim
12 on allegations in the MC, they do nothing to identify any such allegations.
13 III. LEGAL STANDARD
14 A demurrer tests whether a complaint states “facts constituting the cause of action, in ordinary and
15 concise language.” Civ. Proc. Code §§ 425.10(a)(1), 430.10(e); Doe II v. MySpace Inc., 175 Cal. App.
16 4th 561, 566 (2009). In ruling on a demurrer, a court assumes the truth of all facts properly pleaded in the
17 complaint and construes the allegations in a reasonable context. See Madrid v. Perot Sys. Corp., 130 Cal.
18 App. 4th 440, 452 (2005). But a court does not consider deductions or conclusions of law. State ex rel.
19 Bowen v. Bank of Am. Corp., 126 Cal. App. 4th 225, 239–40 (2005). A complaint is subject to demurrer
20 when, for example, the allegations “reveal the existence of an affirmative defense.” Doe II, 175 Cal. App.
21 4th at 566 (affirming sustained demurrer based on Section 230); accord Wholesale Elec. Antitrust Cases
22 I & II, 147 Cal. App. 4th 1293, 1298–99 (2007) (affirming sustained demurrer to master complaint).
23 IV. ARGUMENT
24 A. Plaintiffs’ Effort to Revive Their Unruh Act Claim Fails as a Matter of Law.
25 Plaintiffs’ renewed Unruh Act claim fails. Given that they previously declined to defend the MC’s
26 allegations of sex and age discrimination in response to Defendants’ demurrer, Plaintiffs waived reliance
27 on those same allegations. But even if Plaintiffs are allowed to rely on the MC’s generic discrimination
28 allegations, their claim still fails as a matter of law: Plaintiffs lack standing; they fail to plead intentional
13
DEM. TO CLAIMS FOR SEX AND AGE DISCRIMINATION AND NON-PRODUCT NEGLIGENT FAILURE TO WARN; Case No. 22STCV21355
1 discrimination under the Unruh Act; and Section 230 and the First Amendment bar an Unruh Act claim
2 based on the theory that Defendants selectively recommend certain kinds of third-party content to users.
3 1. Plaintiffs Abandoned the Argument that the Master Complaint Adequately
Alleges an Unruh Act Claim.
4
5 In the initial demurrer briefing, Plaintiffs withdrew their Unruh Act claim rather than respond to
6 Defendants’ arguments. Compare Dem. 8, 48, 92–96, with Opp. 75. By failing to defend the claim based
7 on the MC’s allegations, Plaintiffs abandoned the argument that the MC adequately alleges sex and age
8 discrimination. See, e.g., Fischl v. Pac. Life Ins. Co., 94 Cal. App. 5th 108, 119 n.5 (2023) (claims not
9 defended in briefing “are deemed waived or abandoned”); Taylor v. Nabors Drilling USA, LP, 222 Cal.
10 App. 4th 1228, 1248 (2014) (“When an issue is unsupported by pertinent or cognizable legal argument it
11 may be deemed abandoned[.]”). And the amended SFCs offer no factual allegations supporting the Unruh
12 Act claim or explaining how Defendants supposedly discriminated against individual Plaintiffs. The
13 claim therefore “does not state facts sufficient to constitute a cause of action,” and is subject to dismissal
14 for this reason alone. Civ. Proc. Code § 430.10(e).
15 2. Plaintiffs’ Unruh Act Claim Fails for Lack of Standing.
16 Even if Plaintiffs are permitted to rely on the MC’s general allegations, their Unruh Act claim still
17 fails. As an initial matter, Plaintiffs lack standing to bring the claim. Unruh Act plaintiffs “cannot sue for
18 discrimination in the abstract, but must actually suffer the discriminatory conduct.” Angelucci v. Century
19 Supper Club, 41 Cal. 4th 160, 175 (2007). “The focus of the standing inquiry is on the plaintiff, not on
20 the issues he or she seeks to have determined; he or she must have a special interest that is greater than
21 the interest of the public at large and that is concrete and actual rather than conjectural or hypothetical.”
22 Osborne v. Yasmeh, 1 Cal. App. 5th 1118, 1127 (2016). Plaintiffs must allege they have personally “been
23 the victim of the defendant’s discriminatory act.” White v. Square, Inc., 7 Cal. 5th 1019, 1025 (2019).
24 Plaintiffs have not pleaded anything resembling a “concrete and actual” personal injury that can
25 give rise to standing under the Unruh Act. Neither the MC nor amended SFCs allege facts suggesting that
26 any Defendant “intentionally direct[ed] harmful content” to any individual Plaintiff “because of their
27 gender and age.” MC ¶ 1020. Plaintiffs do not identify any content they did or did not see because of
28 supposed discrimination or any opportunities to use Defendants’ services that they were deprived of.
14
DEM. TO CLAIMS FOR SEX AND AGE DISCRIMINATION AND NON-PRODUCT NEGLIGENT FAILURE TO WARN; Case No. 22STCV21355
1 Instead, they allege only generally that Defendants’ services may target content to unidentified users based
2 on gender or age. E.g., id. ¶ 743. Plaintiffs allege nothing about their own experiences on Defendants’
3 services, much less identify how Defendants allegedly treated them differently from other users based on
4 gender or age. Their claims are entirely abstract, hypothetical, and disconnected from their individual
5 circumstances. Indeed, nothing in the SFCs distinguishes these seven Plaintiffs from those who
6 abandoned their Unruh Act claims, or even hints that these Plaintiffs suffered personal discrimination
7 setting them apart. Particularly if only certain Plaintiffs contend they have viable Unruh Act claims, they
8 must establish an individualized basis for bringing that claim beyond the generic allegations in the
9 MC. There is nothing like that here.6 The Court need go no further to dismiss this claim.
10 3. Plaintiffs Fail to State a Claim for Violation of the Unruh Act.
11 Apart from their lack of standing, the general allegations in the MC simply do not state a viable
12 claim for intentional discrimination under the Unruh Act. The Unruh Act “does not purport to prohibit all
13 differences in treatment or accommodations offered, only unreasonable, arbitrary or invidious
14 discrimination.” Sunrise Country Club Ass’n v. Proud, 190 Cal. App. 3d 377, 381 (1987). To meet this
15 high bar, a plaintiff must show intentional discrimination, which requires “allegations supporting ‘willful,
16 affirmative misconduct’ with the specific intent ‘to accomplish discrimination on the basis of [a protected
17 trait].’” Martinez v. Cot’n Wash, Inc., 81 Cal. App. 5th 1026, 1036 (2022) (quoting Koebke v. Bernardo
18 Heights Country Club, 36 Cal. 4th 824, 853–54 (2005)). Allegations that a facially neutral policy has a
19 disparate impact on a particular protected group do not state a claim for violation of the Unruh
20 Act. Koebke, 36 Cal. 4th at 853.
21 Plaintiffs do not satisfy these requirements. Even taken as true, the allegations in the MC do not
22 amount to invidious discrimination against younger female users regarding their ability to use Defendants’
23 services, including to share, view, and exchange content. Instead, Plaintiffs only allege that Defendants’
24 generally applicable recommendation tools sometimes surface harmful content (e.g., MC ¶ 753), and that
25 some girls and young women have been recommended certain kinds of content to which they are allegedly
26
6
27 Plaintiffs’ claims are especially weak given that most Plaintiffs do not even specifically allege their own
gender, much less that Defendants categorized them as female for content recommendation purposes. See
28 A.S. SFC; K.K. SFC; K.L. SFC; N.S. SFC; P.F. SFC (identifying Plaintiffs only by initials).
15
DEM. TO CLAIMS FOR SEX AND AGE DISCRIMINATION AND NON-PRODUCT NEGLIGENT FAILURE TO WARN; Case No. 22STCV21355
1 particularly vulnerable, such as content relating to beauty standards or eating disorders (e.g., id. ¶¶ 309,
2 1020). For multiple reasons, these allegations fail to plead a violation of the Unruh Act.
3 First, the gravamen of Plaintiffs’ allegations is not that Defendants denied them “full and equal
4 accommodations, advantages, facilities, privileges, or services,” Civ. Code § 51(b),7 but instead that
5 Plaintiffs were harmed by objectionable third-party content. Plaintiffs do not allege that they were
6 deprived of some opportunity to use Defendants’ services on equal terms with older men or that they were
7 denied access to features or information on the basis of their sex and age. Instead, Plaintiffs impermissibly
8 seek to remedy “traditional wrongs arising out of tort,” not “arbitrary discrimination.” Gayer v. Polk
9 Gulch, Inc., 231 Cal. App. 3d 515, 525 (1991); accord Ramirez v. Wong, 188 Cal. App. 4th 1480, 1485
10 (2010) (Unruh Act claim failed because manager’s unlawful entry into female plaintiffs’ apartment and
11 use of their intimate possessions “had nothing to do with the denial of equal accommodations or facilities
12 on the basis of sex”).
13 This sharply distinguishes Plaintiffs’ claim from that in Liapes v. Facebook, Inc., 95 Cal. App. 5th
14 910 (2023). Liapes alleged that Facebook violated the Unruh Act by “requir[ing] all advertisers to choose
15 the age and gender of its users who will receive ads,” “encourag[ing] them to narrow the age range and
16 genders of” the target audience, and using an algorithm that “relies heavily on age and gender to determine
17 which users will actually receive the ad.” Id. at 915–17. The result, Liapes alleged, was that “women and
18 older people were categorically excluded from receiving various insurance ads—an admitted service of
19 Facebook—on its platform.” Id. at 923 (emphasis added). Liapes identified particular insurance ads that
20 she allegedly did not see, because they were served only to male and/or younger users, and the court held
21 that, as pled, she “actually suffered discrimination” since “she was deprived of information regarding
22 insurance opportunities” that she was “ready and able to pursue.” Id. at 921.
23 Plaintiffs here allege nothing like that. There is no suggestion that Defendants’ content
24 recommendations in any way limit the material Plaintiffs can access on Defendants’ services (nor, as
25 discussed, do they identify any specific content that they personally did not see). Rather, Plaintiffs allege
26
7
27 The Court should not credit Plaintiffs’ conclusory repetition of the words of the relevant legal test (MC
¶ 1020). What matters is that the facts alleged, taken as true, do not amount to an actionable Unruh Act
28 violation. See O’Grady v. Merch. Exch. Prods., Inc., 41 Cal. App. 5th 771, 777 (2019).
16
DEM. TO CLAIMS FOR SEX AND AGE DISCRIMINATION AND NON-PRODUCT NEGLIGENT FAILURE TO WARN; Case No. 22STCV21355
1 that Defendants’ content recommendations are more likely to cause harm to them than other users. E.g.,
2 MC ¶ 119 (alleging certain features caused body image issues that “were more prominent among
3 adolescent girls, given their higher susceptibility to social pressures related to their bodies”); id. ¶ 484
4 (similar); id. ¶ 633 (similar); see also id. ¶ 316 (“teen girls are eight times more likely to engage in negative
5 social comparison than” teen boys). That is not a cognizable claim for discrimination under the Unruh
6 Act. For example, while a bookstore may violate the Act by categorically refusing to sell certain books
7 to women, the store would not violate the Act by recommending books to women that are more popular
8 among its female customers or by directing younger customers to the children’s book section—even if the
9 content in those books ended up being harmful to some of those readers. Cf. Sunrise Country Club Ass’n,
10 190 Cal. App. 3d at 380–81 (“adult” and “family” sections of condo development permissible). The latter
11 scenarios simply do not involve depriving users of “the full and equal accommodations, advantages,
12 facilities, privileges, or services” of a business establishment. Civ. Code § 51(b).
13 Second, Plaintiffs do not allege that Defendants had a “specific intent ‘to accomplish
14 discrimination,’” as the Unruh Act requires. Martinez, 81 Cal. App. 5th at 1036 (emphasis added). Even
15 if Plaintiffs could show that girls and young women were exposed to harmful third-party content at a
16 higher rate than male users (which they have not actually alleged), or that such third-party content had a
17 more harmful effect on girls and young women than on male users (e.g., MC ¶¶ 309, 315–316), that would,
18 at most, amount to the kind of disparate impact that does not violate the Unruh Act. See, e.g., Turner v.
19 Ass’n of Am. Med. Colls., 167 Cal. App. 4th 1401, 1409 (2008) (rejecting claim that policies were
20 “discriminatory because they have a disparate impact”); Harris v. Cap. Growth Invs. XIV, 52 Cal. 3d 1142,
21 1172–73 (1991) (claim alleging disproportionate effect on women did not state Unruh Act violation);
22 Ebeid v. Facebook, Inc., 2019 WL 2059662, at *7 (N.D. Cal. May 9, 2019) (dismissing claim challenging
23 online posting restrictions where plaintiff failed to “adequately allege[] that Facebook’s conduct was
24 animated by discriminatory intent”).
25 Plaintiffs’ own allegations confirm that their claim sounds, at most, in disparate impact. While the
26 MC contains scattered suggestions that certain types of content were recommended to girls (e.g., MC
27 ¶ 376 (“topics eliciting appearance comparison comprise one third of what teen girls see on Instagram”);
28 id. ¶ 580 (TikTok “promoted” “extreme diet videos” to “several teenage girls”), Plaintiffs do not allege
17
DEM. TO CLAIMS FOR SEX AND AGE DISCRIMINATION AND NON-PRODUCT NEGLIGENT FAILURE TO WARN; Case No. 22STCV21355
1 that this content was shown to users because of their age or gender—rather than because, e.g., they had
2 previously interacted with similar content. Nor do they allege that this content was not shown to users of
3 different demographics. In fact, the MC repeatedly asserts harm to boys based on the same alleged
4 conduct—i.e., that Defendants’ algorithms recommend harmful third-party content to them. E.g., id.
5 ¶¶ 619–621, 861(c). This underscores that Plaintiffs take issue with content that is disseminated to all
6 users via Defendants’ algorithms, while suggesting (at most) that some content may be more harmful to
7 some young female users. But the Unruh Act “does not extend to practices and policies that apply equally
8 to all persons.” Turner, 167 Cal. App. 4th at 1408; accord Young v. Facebook, Inc., 790 F. Supp. 2d 1110,
9 1116 (N.D. Cal. 2011) (dismissing claim where the “essence of [the] complaint [was] that Facebook’s
10 account management and customer service systems treat all users in the same cold, automated way”).
11 Plaintiffs’ allegations about the data that allegedly drive Defendants’ content recommendation
12 algorithms reinforce that Plaintiffs seek to challenge generally applicable conduct. For one thing, the MC
13 asserts that Defendants’ algorithms reflect numerous factors, most of which relate to the user’s own
14 activity, such as the content the user has previously searched for, viewed, and interacted with. MC ¶¶ 295–
15 296, 302, 468, 559, 563–564, 583, 743–745; cf. Twitter, Inc. v. Taamneh, 598 U.S. 471, 499 (2023)
16 (defendants’ algorithms “allegedly sort the content by information and inputs provided by users and found
17 in the content itself”). Surfacing particular types of content for a given user based on a wide array of
18 behavioral or personal information is not discrimination, let alone the sort of invidious discrimination the
19 Unruh Act addresses. E.g., Gayer, 231 Cal. App. 3d at 525 (Act does not “cover discrimination which
20 is . . . based on the conduct of an individual,” nor “discrimination based on purely personal grounds”);
21 Scripps Clinic v. Super. Ct., 108 Cal. App. 4th 917, 934 (2003) (policy based “upon [a] patient’s conduct”
22 was not “the kind of discrimination that the Unruh Civil Rights Act was meant to preclude”).
23 Moreover, that some algorithms allegedly may consider users’ gender and age among scores of
24 other signals in suggesting content to particular users, as alleged here (e.g., MC ¶¶ 225, 743), also does
25 not amount to a “specific intent” to discriminate. E.g., Cohn v. Cori
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1 CHRISTOPHER CHIOU, SBN 233587 WILSON SONSINI GOODRICH & ROSATI 2 Professional Corporation 953 East Third Street, Suite 100 3 Los Angeles, CA 90013 Telephone: 323-210-2900 4 Email: cchiou@wsgr.com 5 Attorneys for Defendants YouTube, LLC 6 and Google LLC [Additional Counsel on Signature Page] 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF LOS ANGELES 10 11 COORDINATION PROCEEDING SPECIAL JUDICIAL COUNCIL COORDINATION 12 TITLE [RULE 3.400] PROCEEDING NO. 5255 13 SOCIAL MEDIA CASES For Filing Purposes: 22STCV21355 14 THIS DOCUMENT RELATES TO: Judge: Hon. Carolyn B. Kuhl SSC-12 15 (Christina Arlington Smith, et al. v. TikTok Inc., et al., Case No. 22STCV21355) DEFENDANTS’ NOTICE OF DEMURRER 16 AND DEMURRER TO CLAIMS FOR SEX 17 (A.S. et al. v. Meta Platforms, Inc. et al., Case No. AND AGE DISCRIMINATION AND NON- 22STCV28202) PRODUCT NEGLIGENT FAILURE TO 18 WARN ASSERTED IN PLAINTIFFS’ (Glenn-Mills v. Meta Platforms, Inc. et al., Case MASTER COMPLAINT AND 19 No. 23SMCV03371) IDENTIFIED SHORT-FORM 20 COMPLAINTS (J.S. et al. v. Meta Platforms, Inc. et al., Case No. 21 CV 2022-1472) [Filed concurrently with Declaration of Brian M. Willen] 22 (K.K. et al. v. Meta Platforms, Inc. et al., Case No. 23SMCV03371) Date: March 20, 2024 23 Time: 1:45 p.m. (K.L. et al. v. Meta Platforms, Inc. et al., Case No. Dept.: SSC-12 24 CIV SB 2218921) 25 (N.S. et al. v. Snap Inc., Case No. 22CV019089) 26 (P.F. et al. v. Meta Platforms, Inc. et al., Case No. 27 23SMCV03371) 28 1 DEM. TO CLAIMS FOR SEX AND AGE DISCRIMINATION AND NON-PRODUCT NEGLIGENT FAILURE TO WARN; Case No. 22STCV21355 1 TO PLAINTIFFS AND THEIR ATTORNEYS OF RECORD: 2 PLEASE TAKE NOTICE THAT on March 20, 2024, at 1:45 p.m., or as soon thereafter as the 3 matter may be heard, in Department 12 of the Superior Court for the County of Los Angeles, located at 4 312 North Spring Street, Los Angeles, California 90012, Defendants Meta Platforms, Inc. f/k/a Facebook, 5 Inc.; Instagram, LLC; Facebook Payments, Inc.; Siculus, Inc.; Facebook Operations, LLC; Facebook 6 Technologies, LLC; and Facebook Holdings, LLC (collectively, “Meta” or the “Meta Defendants”); 7 Defendant Snap, Inc. (“Snap”); Defendants ByteDance Ltd.; ByteDance Inc.; TikTok Ltd.; TikTok LLC; 8 and TikTok Inc. (collectively, “TikTok” or the “TikTok Defendants”); and Defendants Google LLC and 9 YouTube, LLC (collectively, “YouTube” or the “YouTube Defendants”) (and, together with all 10 Defendants, “Defendants”) will and hereby do demur to Plaintiffs’ Master Complaint (Personal Injury) 11 (“MC”) and Plaintiffs’ below-identified Short-Form Complaints (“SFCs”) (collectively, the “Operative 12 Pleadings”): 13 1. First Amended Short Form Complaint For Damages And Demand For Jury Trial, A.S. ex 14 rel. E.S. v. Meta Platforms, Inc., et al., Case No. 22STCV28202 (L.A. Super. Ct. filed 15 Jan. 5, 2024) (“A.S. SFC”). 16 2. First Amended Short Form Complaint For Damages And Demand For Jury Trial, Glenn- 17 Mills v. Meta Platforms, Inc., et al., Case No. 23SMCV03371 (L.A. Super. Ct. filed Jan. 18 5, 2024) (“Glenn-Mills SFC”). 19 3. First Amended Short Form Complaint For Damages And Demand For Jury Trial, K.L. ex 20 rel. S.S. v. Meta Platforms, Inc., et al., Case No. CIV SB 2218921 (L.A. Super. Ct. filed 21 Jan. 5, 2024) (“K.L. SFC”). 22 4. First Amended Short Form Complaint For Damages And Demand For Jury Trial, N.S. ex 23 rel. Z.H. v. Snap Inc., Case No. 22CV019089 (L.A. Super. Ct. filed Jan. 5, 2024) (“N.S. 24 SFC”). 25 5. First Amended Short Form Complaint For Damages And Demand For Jury Trial, P.F. ex 26 rel. A.F. v. Meta Platforms, Inc., et al., Case No. 23SMCV03371 (L.A. Super. Ct. filed 27 Jan. 5, 2024) (“P.F. SFC”). 28 2 DEM. TO CLAIMS FOR SEX AND AGE DISCRIMINATION AND NON-PRODUCT NEGLIGENT FAILURE TO WARN; Case No. 22STCV21355 1 6. Second Amended Short Form Complaint For Damages And Demand For Jury Trial, J.S. 2 and D.S. ex rel. L.H.S. v. Meta Platforms, Inc., et al., Case No. CV2022-1472 (L.A. 3 Super. Ct. filed Jan. 9, 2024) (“J.S. SFC”). 4 7. Second Amended Short Form Complaint For Damages And Demand For Jury Trial, K.K. 5 ex rel. S.K. v. Meta Platforms, Inc., et al., Case No. 23SMCV03371 (L.A. Super. Ct. filed 6 Jan. 17, 2024) (“K.K. SFC”). 7 This demurrer is made on the grounds that the Operative Pleadings do not state facts sufficient to 8 constitute a cause of action against Defendants. 9 Defendants base this motion on this notice, the demurrer and memorandum of points and 10 authorities, and all other pleadings and papers on file in this action, and on such other arguments or 11 evidence that may be submitted to the Court prior to the hearing. 12 DATED: January 25, 2024 WILSON SONSINI GOODRICH & ROSATI PC 13 14 15 By: /s/ Christopher Chiou Christopher Chiou 16 17 CHRISTOPHER CHIOU, SBN 233587 cchiou@wsgr.com 18 953 East Third Street, Suite 100 Los Angeles, CA 90013 19 Telephone: 323-210-2900 Email: cchiou@wsgr.com 20 Attorneys for Defendants YouTube, LLC and Google 21 LLC 22 [Additional Counsel on Signature Page] 23 24 25 26 27 28 3 DEM. TO CLAIMS FOR SEX AND AGE DISCRIMINATION AND NON-PRODUCT NEGLIGENT FAILURE TO WARN; Case No. 22STCV21355 1 DEMURRER 2 Defendants demur to the Operative Pleadings as follows: 3 Demurrer to Operative Pleadings 4 1. The Operative Pleadings are defective for failure to state facts sufficient to constitute a 5 cause of action against Defendants. Civ. Proc. Code § 430.10(e). 6 Demurrer to Tenth Cause of Action 7 (SEX AND AGE DISCRIMINATION) 8 (Asserted in A.S. SFC Against Snap Only) 9 (Asserted in Glenn-Mills SFC Against All Defendants) 10 (Asserted in K.K. SFC Against the Meta and TikTok Defendants) 11 (Asserted in K.L. SFC Against the Meta, Snap, and TikTok Defendants) 12 (Asserted in N.S. SFC Against Snap Only) 13 (Asserted in P.F. SFC Against the Meta and TikTok Defendants) 14 2. Plaintiffs’ tenth cause of action is subject to demurrer for failure to state facts sufficient to 15 constitute a cause of action against Defendants and because Plaintiffs have abandoned the cause of action. 16 Plaintiffs’ sex and age discrimination claim fails because (1) Plaintiffs previously declined to defend the 17 claim in the MC, and should not now be allowed to rely on allegations in the MC to reassert the claim in 18 Plaintiffs’ amended SFCs; (2) Plaintiffs fail to establish standing to bring a claim under California’s Unruh 19 Civil Rights Act, Civ. Code § 51(b); (3) Plaintiffs fail to plead intentional discrimination in violation of 20 the Unruh Act; (4) Plaintiffs’ claim is barred by Section 230 of the Communications Decency Act, 47 21 U.S.C. § 230; and (5) Plaintiffs’ claim is barred by the First Amendment to the U.S. Constitution and the 22 Liberty of Speech Clause in the California Constitution. 23 Demurrer to Additional Counts Asserted in SFCs 24 (NON-PRODUCT NEGLIGENT FAILURE TO WARN) 25 (Asserted in A.S. SFC Against the Meta, Snap, and TikTok Defendants) 26 (Asserted in Glenn-Mills SFC Against All Defendants) 27 (Asserted in J.S. SFC Against the Meta, TikTok, and YouTube Defendants) 28 (Asserted in K.K. SFC Against the Meta and TikTok Defendants) 4 DEM. TO CLAIMS FOR SEX AND AGE DISCRIMINATION AND NON-PRODUCT NEGLIGENT FAILURE TO WARN; Case No. 22STCV21355 1 (Asserted in K.L. SFC Against the Meta, Snap, and TikTok Defendants) 2 (Asserted in N.S. SFC Against Snap Only) 3 (Asserted in P.F. SFC Against the Meta and TikTok Defendants) 4 3. Plaintiffs’ additional cause of action for non-product negligent failure to warn is subject to 5 demurrer for failure to state facts sufficient to constitute a cause of action against Defendants. Plaintiffs’ 6 non-product failure to warn claim fails because (1) Plaintiffs do not allege facts sufficient to give 7 Defendants fair notice of their claim; (2) Plaintiffs fail to plead a non-product failure to warn claim; (3) 8 Plaintiffs’ claim is barred by Section 230 of the Communications Decency Act, 47 U.S.C. § 230; and (4) 9 Plaintiffs’ claim is barred by the First Amendment to the U.S. Constitution and the Liberty of Speech 10 Clause in the California Constitution. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 DEM. TO CLAIMS FOR SEX AND AGE DISCRIMINATION AND NON-PRODUCT NEGLIGENT FAILURE TO WARN; Case No. 22STCV21355 1 TABLE OF CONTENTS 2 MEMORANDUM OF POINTS AND AUTHORITIES .............................................................. 11 3 I. INTRODUCTION ............................................................................................................ 11 4 II. BACKGROUND .............................................................................................................. 11 5 III. LEGAL STANDARD ....................................................................................................... 13 6 IV. ARGUMENT .................................................................................................................... 13 7 A. Plaintiffs’ Effort to Revive Their Unruh Act Claim Fails as a Matter of Law ..... 13 8 1. Plaintiffs Abandoned the Argument that the Master Complaint 9 Adequately Alleges an Unruh Act Claim. ................................................ 14 10 2. Plaintiffs’ Unruh Act Claim Fails for Lack of Standing. .......................... 14 11 3. Plaintiffs Fail to State a Claim for Violation of the Unruh Act. ............... 15 12 4. Plaintiffs’ Unruh Act Claims Are Barred by Section 230. ....................... 19 13 5. Plaintiffs’ Unruh Act Claims Are Barred by the First Amendment. ........ 21 14 B. Plaintiffs Fail to State a Claim for Non-Product Negligent Failure to Warn........ 22 15 V. CONCLUSION ................................................................................................................. 26 16 17 18 19 20 21 22 23 24 25 26 27 28 6 DEM. TO CLAIMS FOR SEX AND AGE DISCRIMINATION AND NON-PRODUCT NEGLIGENT FAILURE TO WARN; Case No. 22STCV21355 1 TABLE OF AUTHORITIES Page(s) 2 CASES 3 303 Creative LLC v. Elenis, 4 143 S. Ct. 2298 (2023) .......................................................................................................22 5 Angelucci v. Century Supper Club, 41 Cal. 4th 160 (2007) .......................................................................................................14 6 Bill v. Super. Ct., 7 137 Cal. App. 3d 1002 (1982) ...........................................................................................26 8 Bride v. Snap Inc., 2023 WL 2016927 (C.D. Cal. Jan. 10, 2023) ....................................................................26 9 Brown v. USA Taekwondo, 10 11 Cal. 5th 204 (2021) .......................................................................................................24 11 Cohn v. Corinthian Coll., Inc., 169 Cal. App. 4th 523 (2008) ............................................................................................18 12 Davidson v. City of Westminster, 13 32 Cal. 3d 197 (1982) ........................................................................................................24 14 Divino Grp. LLC v. Google LLC, 2022 WL 4625076 (N.D. Cal. Sept. 30, 2022) ..................................................................19 15 Doe II v. MySpace Inc., 16 175 Cal. App. 4th 561 (2009) ............................................................................................13 17 Doe v. City of Los Angeles, 42 Cal. 4th 531 (2007) .......................................................................................................22 18 Domen v. Vimeo, Inc., 19 433 F. Supp. 3d 592 (S.D.N.Y. 2020)................................................................................19 20 Dyroff v. Ultimate Software Grp., Inc., 2017 WL 5665670 (N.D. Cal. Nov. 26, 2017), 21 aff’d, 934 F.3d 1093 (9th Cir. 2019) ..................................................................................25 22 Dyroff v. Ultimate Software Grp., Inc., 934 F.3d 1093 (9th Cir. 2019) ...........................................................................................24 23 Ebeid v. Facebook, Inc., 24 2019 WL 2059662 (N.D. Cal. May 9, 2019) .....................................................................17 25 Fair Hous. Council v. Roommates.Com, LLC, 521 F.3d 1157 (9th Cir. 2008) ...........................................................................................20 26 Fed. Agency of News LLC v. Facebook, Inc., 27 432 F. Supp. 3d 1107 (N.D. Cal. 2020) .............................................................................19 28 7 DEM. TO CLAIMS FOR SEX AND AGE DISCRIMINATION AND NON-PRODUCT NEGLIGENT FAILURE TO WARN; Case No. 22STCV21355 1 Fischl v. Pac. Life Ins. Co., 94 Cal. App. 5th 108 (2023) ..............................................................................................14 2 Gayer v. Polk Gulch, Inc., 3 231 Cal. App. 3d 515 (1991) .......................................................................................16, 18 4 Harris v. Cap. Growth Invs. XIV, 52 Cal. 3d 1142 (1991) ................................................................................................17, 19 5 Hart v. Cult Awareness Network, 6 13 Cal. App. 4th 777 (1993) ..............................................................................................21 7 Herrick v. Grindr LLC, 765 F. App’x 586 (2d Cir. 2019) .......................................................................................26 8 In re Facebook, Inc., 9 625 S.W.3d 80 (Tex. 2021)................................................................................................25 10 In re Soc. Media Adolescent Addiction/Pers. Inj. Prods. Liab. Litig., __ F. Supp. 3d __, 2023 WL 7524912 (N.D. Cal. Nov. 14, 2023) ..............................24, 25 11 Ingels v. Westwood One Broad. Servs., Inc., 12 129 Cal. App. 4th 1050 (2005) ..........................................................................................21 13 Jane Doe No. 14 v. Internet Brands, Inc., 2016 WL 11824793 (C.D. Cal. Nov. 14, 2016).................................................................24 14 Kious v. Teva Pharms. USA, Inc., 15 2016 WL 9559038 (W.D. Okla. Dec. 8, 2016) ..................................................................23 16 Koebke v. Bernardo Heights Country Club, 36 Cal. 4th 824 (2005) .......................................................................................................15 17 Kuciemba v. Victory Woodworks, Inc., 18 531 P.3d 924 (2023)...........................................................................................................25 19 L.W. v. Snap Inc., 2023 WL 3830365 (S.D. Cal. June 5, 2023)......................................................................26 20 Liapes v. Facebook, Inc., 21 95 Cal. App. 5th 910 (2023) ............................................................................16, 18, 19, 20 22 Ludgate Ins. Co. v. Lockheed Martin Corp., 82 Cal. App. 4th 592 (2000) ..............................................................................................22 23 Madrid v. Perot Sys. Corp., 24 130 Cal. App. 4th 440 (2005) ............................................................................................13 25 Martinez v. Cot’n Wash, Inc., 81 Cal. App. 5th 1026 (2022) ......................................................................................15, 17 26 McCollum v. CBS, Inc., 27 202 Cal. App. 3d 989 (1988) .............................................................................................21 28 8 DEM. TO CLAIMS FOR SEX AND AGE DISCRIMINATION AND NON-PRODUCT NEGLIGENT FAILURE TO WARN; Case No. 22STCV21355 1 Melton v. Boustred, 183 Cal. App. 4th 521 (2010) ............................................................................................24 2 Miami Herald Publ’g Co. v. Tornillo, 3 418 U.S. 241 (1974) ...........................................................................................................21 4 NetChoice, LLC v. Att’y Gen., Fla., 34 F.4th 1196 (11th Cir. 2022), 5 cert. granted in part, Moody v. NetChoice, LLC, 2023 WL 6319654 (U.S. Sept. 29, 2023)...............................21 6 O’Grady v. Merch. Exch. Prods., Inc., 7 41 Cal. App. 5th 771 (2019) ........................................................................................16, 22 8 Olivia N. v. Nat’l Broad. Co., 126 Cal. App. 3d 488 (1981) .............................................................................................26 9 Osborne v. Yasmeh, 10 1 Cal. App. 5th 1118 (2016) ..............................................................................................14 11 Prager Univ. v. Google LLC, 85 Cal. App. 5th 1022 (2022) ..........................................................................19, 20, 21, 25 12 Ramirez v. Wong, 13 188 Cal. App. 4th 1480 (2010) ..........................................................................................16 14 Regents of Univ. of Cal. v. Super. Ct., 4 Cal. 5th 607 (2018) .........................................................................................................24 15 Scripps Clinic v. Super. Ct., 16 108 Cal. App. 4th 917 (2003) ............................................................................................18 17 State ex rel. Bowen v. Bank of Am. Corp., 126 Cal. App. 4th 225 (2005) ............................................................................................13 18 Sunrise Country Club Ass’n v. Proud, 19 190 Cal. App. 3d 377 (1987) .......................................................................................15, 17 20 Tarasoff v. Regents of Univ. of Cal., 17 Cal. 3d 425 (1976) ........................................................................................................23 21 Taylor v. Nabors Drilling USA, LP, 22 222 Cal. App. 4th 1228 (2014) ..........................................................................................14 23 Turner v. Ass’n of Am. Med. Colls., 167 Cal. App. 4th 1401 (2008) ....................................................................................17, 18 24 Twitter, Inc. v. Taamneh, 25 598 U.S. 471 (2023) .....................................................................................................18, 24 26 U.S. W. Falun Dafa Ass’n v. Chinese Chamber of Com., 163 Cal. App. 4th 590 (2008) ............................................................................................21 27 White v. Square, Inc., 28 7 Cal. 5th 1019 (2019) .......................................................................................................14 9 DEM. TO CLAIMS FOR SEX AND AGE DISCRIMINATION AND NON-PRODUCT NEGLIGENT FAILURE TO WARN; Case No. 22STCV21355 1 Wholesale Elec. Antitrust Cases I & II, 147 Cal. App. 4th 1293, 1298–99 (2007) ..........................................................................13 2 Young v. Facebook, Inc., 3 790 F. Supp. 2d 1110 (N.D. Cal. 2011) .............................................................................18 4 Ziencik v. Snap, Inc., 2023 WL 2638314 (C.D. Cal. Feb. 3, 2023)......................................................................25 5 STATUTES AND CONSTITUTIONAL PROVISIONS 6 47 U.S.C. § 230 ...................................................................................................................... passim 7 Civ. Code § 51(b)................................................................................................................... passim 8 Civ. Proc. Code § 425.10 ...................................................................................................13, 22, 23 9 Civ. Proc. Code § 430.10 .........................................................................................................13, 14 10 U.S. Const., amend. I ............................................................................................................. passim 11 MISCELLANEOUS 12 Rutter Group, Cal. Prac. Guide: Civ. Proc. Before Trial § 6:127 (June 2023 Update) .................23 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 DEM. TO CLAIMS FOR SEX AND AGE DISCRIMINATION AND NON-PRODUCT NEGLIGENT FAILURE TO WARN; Case No. 22STCV21355 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION 3 Plaintiffs in the seven identified cases filed amended SFCs that purport to assert claims for: (1) sex 4 and age discrimination under California’s Unruh Civil Rights Act, which Plaintiffs withdrew from the 5 SFCs that were the subject of Defendants’ prior demurrer, and (2) “non-product negligent failure to warn,” 6 which Plaintiffs did not assert in the MC. These claims are procedurally improper and fail on the merits. 7 The Court should dismiss Plaintiffs’ Unruh Act claim because Plaintiffs, having previously chosen 8 not to defend the general Unruh Act allegations in the MC in response to Defendants’ demurrer, offer no 9 allegations whatsoever in the amended SFCs to support any claim of discrimination. But even if Plaintiffs 10 can rely on the MC here, they fail to state any legally viable Unruh Act claim for several reasons: (1) 11 Plaintiffs lack standing because they have not alleged that they personally suffered discrimination at 12 Defendants’ hands; (2) Plaintiffs’ allegations regarding Defendants’ content recommendations do not 13 amount to intentional discrimination in violation of the Unruh Act; and (3) Plaintiffs’ effort to state an 14 Unruh Act claim based on the theory that Defendants used demographic information to recommend 15 harmful content is barred by Section 230 and the First Amendment. 16 Plaintiffs’ “non-product negligent failure to warn” claim is similarly improper. Though it is 17 presented as a Plaintiff-specific claim solely in the SFCs, the SFCs offer no allegations to explain the basis 18 of the claim, much less to support it. Plaintiffs’ one-line assertion of the claim is insufficient even under 19 the most liberal of notice pleading standards. And even if the basis for this newly asserted claim were 20 discernible, the claim would fail on the merits because Plaintiffs have failed to allege a special relationship 21 or misfeasance, and because the claim is barred by Section 230 and the First Amendment. 22 II. BACKGROUND 23 Plaintiffs previously selected three SFCs that were the focus of the initial demurrer briefing. Two 24 of the three identified SFCs asserted a cause of action for “sex and age discrimination pursuant to 25 California’s Unruh Civil Rights Act, and other state laws” (MC ¶ 1015 (Count 10)).1 Neither these SFCs 26 nor the MC asserted a cause of action for non-product negligent failure to warn. 27 1 See Short Form Complaint For Damages And Demand For Jury Trial, J.P. and R.P. ex rel. M.P. v. Meta 28 Platforms, Inc., et al., Case No. 22STCV26778 (L.A. Super. Ct. filed June 14, 2023) (“J.P. SFC”) at 7; 11 DEM. TO CLAIMS FOR SEX AND AGE DISCRIMINATION AND NON-PRODUCT NEGLIGENT FAILURE TO WARN; Case No. 22STCV21355 1 Defendants demurred to Plaintiffs’ MC and selected SFCs on July 14, 2023. That demurrer 2 explained that Plaintiffs’ Unruh Act claim failed for numerous reasons. Dem. 8, 48, 92–96. Instead of 3 responding to those arguments, Plaintiffs withdrew the Unruh Act claim from the two SFCs that asserted 4 it. Opp. 75. The Court ruled on Defendants’ demurrer on October 13, 2023, sustaining it as to Plaintiffs’ 5 product liability and various other claims (Counts 1–4, 6, 8, and 9), and overruling it as to Plaintiffs’ 6 general negligence and fraudulent concealment claims (Counts 5 and 7) (the “Order”). 7 In January 2024, Plaintiffs filed amended SFCs that, in relevant part: (1) continued to assert the 8 Unruh Act claim that Plaintiffs withdrew during the initial round of demurrer briefing;2 and (2) asserted— 9 for the first time—a cause of action for “non-product negligent failure to warn.”3 These amended SFCs 10 contained no new allegations purporting to support either claim. In light of Plaintiffs’ amendments, the 11 Parties agreed that Defendants should be permitted to demur to and/or move to strike those claims as 12 asserted in the amended SFCs.4 See Jan. 12, 2024 Joint Status Conference Statement at 25.5 13 The SFCs at issue incorporate the MC allegations by reference. E.g., A.S. SFC at 1. With respect 14 to the Unruh Act claim, the MC conclusorily alleges that “Defendants are engaged in discriminatory 15 Amended Short Form Complaint For Damages And Demand For Jury Trial, Cramblet ex rel. M.C. v. Meta 16 Platforms, Inc., et al., Case No. 22STCV40543 (L.A. Super. Ct. filed June 15, 2023) (“M.C. SFC”) at 7. 2 17 A.S. SFC at 7; Glenn-Mills SFC at 7; K.K. SFC at 7; K.L. SFC at 7; N.S. SFC at 7; P.F. SFC at 7. 3 A.S. SFC at 8; Glenn-Mills SFC at 8; J.S. SFC at 8; K.K. SFC at 8; K.L. SFC at 8; N.S. SFC at 8; P.F. 18 SFC at 8. All seven SFCs continue to assert claims for negligence (Count 5) against all Defendants, e.g., 19 A.S. SFC at 6, and five assert claims for fraudulent concealment against Meta, id.; Glenn-Mills SFC at 6; K.K. SFC at 6; K.L. SFC at 6; J.S. SFC at 6. Defendants expressly raise, and hereby preserve, the 20 arguments against those claims made in the original demurrer. Additionally, Plaintiffs continue to assert other claims under California law (e.g., product liability) that the Court dismissed in its demurrer Order. 21 Defendants request that the Court’s earlier ruling be applied to the SFCs subject to the instant Demurrer. 4 22 The Court permitted Defendants to move to strike allegations regarding third-party misconduct and online “challenges” (i.e., injuries identified in footnote 1 of the Order) in the same seven SFCs, and related 23 allegations in the MC. Tr. of Proceedings of Nov. 7, 2023 at 18–23; Tr. of Proceedings of Dec. 7, 2023 at 28. That motion is filed concurrently with this Demurrer. 24 5 The J.S. SFC also alleges injuries related to use of an Oculus headset. See J.S. SFC at 5. On June 16, 25 2023, via CaseAnywhere, this Court approved the Parties’ proposal to defer demurrer briefing on the Oculus allegations. To the best of Meta’s knowledge, the J.S. plaintiffs remain the only plaintiffs asserting 26 Oculus-related claims. Meta reserves its right to seek to demur to the Oculus claims at an appropriate 27 stage of these proceedings, but at this time, given the narrow parameters of the instant demurrer and concurrent motion to strike, Meta believes that deferral of briefing as to the Oculus claims continues to be 28 appropriate. 12 DEM. TO CLAIMS FOR SEX AND AGE DISCRIMINATION AND NON-PRODUCT NEGLIGENT FAILURE TO WARN; Case No. 22STCV21355 1 practices” by “programming[] and operati[ng]” “recommendation technologies in a manner that 2 discriminates against users based on their age, gender, and other protect [sic] class characteristics.” MC 3 ¶ 1015. Plaintiffs contend that by “intentionally directing harmful content, including content related to 4 eating disorders, to young girls and young women because of their gender and age,” Defendants “deny 5 girls and young women the full and equal accommodations” of Defendants’ online services. Id. 6 ¶ 1020. None of the SFCs that assert Unruh Act claims against Defendants include any supporting 7 allegations regarding Defendants’ alleged discrimination. Rather, they rely on the same generalized 8 allegations in the MC, as did the two SFCs where the Plaintiffs chose to voluntarily dismiss their claims. 9 The MC does not assert any claim for “non-product negligent failure to warn,” and the amended SFCs 10 raise this claim solely by stating the name of the cause of action while offering no explanation of the 11 nature of the claim or any supporting factual allegations. Insofar as Plaintiffs purport to base this claim 12 on allegations in the MC, they do nothing to identify any such allegations. 13 III. LEGAL STANDARD 14 A demurrer tests whether a complaint states “facts constituting the cause of action, in ordinary and 15 concise language.” Civ. Proc. Code §§ 425.10(a)(1), 430.10(e); Doe II v. MySpace Inc., 175 Cal. App. 16 4th 561, 566 (2009). In ruling on a demurrer, a court assumes the truth of all facts properly pleaded in the 17 complaint and construes the allegations in a reasonable context. See Madrid v. Perot Sys. Corp., 130 Cal. 18 App. 4th 440, 452 (2005). But a court does not consider deductions or conclusions of law. State ex rel. 19 Bowen v. Bank of Am. Corp., 126 Cal. App. 4th 225, 239–40 (2005). A complaint is subject to demurrer 20 when, for example, the allegations “reveal the existence of an affirmative defense.” Doe II, 175 Cal. App. 21 4th at 566 (affirming sustained demurrer based on Section 230); accord Wholesale Elec. Antitrust Cases 22 I & II, 147 Cal. App. 4th 1293, 1298–99 (2007) (affirming sustained demurrer to master complaint). 23 IV. ARGUMENT 24 A. Plaintiffs’ Effort to Revive Their Unruh Act Claim Fails as a Matter of Law. 25 Plaintiffs’ renewed Unruh Act claim fails. Given that they previously declined to defend the MC’s 26 allegations of sex and age discrimination in response to Defendants’ demurrer, Plaintiffs waived reliance 27 on those same allegations. But even if Plaintiffs are allowed to rely on the MC’s generic discrimination 28 allegations, their claim still fails as a matter of law: Plaintiffs lack standing; they fail to plead intentional 13 DEM. TO CLAIMS FOR SEX AND AGE DISCRIMINATION AND NON-PRODUCT NEGLIGENT FAILURE TO WARN; Case No. 22STCV21355 1 discrimination under the Unruh Act; and Section 230 and the First Amendment bar an Unruh Act claim 2 based on the theory that Defendants selectively recommend certain kinds of third-party content to users. 3 1. Plaintiffs Abandoned the Argument that the Master Complaint Adequately Alleges an Unruh Act Claim. 4 5 In the initial demurrer briefing, Plaintiffs withdrew their Unruh Act claim rather than respond to 6 Defendants’ arguments. Compare Dem. 8, 48, 92–96, with Opp. 75. By failing to defend the claim based 7 on the MC’s allegations, Plaintiffs abandoned the argument that the MC adequately alleges sex and age 8 discrimination. See, e.g., Fischl v. Pac. Life Ins. Co., 94 Cal. App. 5th 108, 119 n.5 (2023) (claims not 9 defended in briefing “are deemed waived or abandoned”); Taylor v. Nabors Drilling USA, LP, 222 Cal. 10 App. 4th 1228, 1248 (2014) (“When an issue is unsupported by pertinent or cognizable legal argument it 11 may be deemed abandoned[.]”). And the amended SFCs offer no factual allegations supporting the Unruh 12 Act claim or explaining how Defendants supposedly discriminated against individual Plaintiffs. The 13 claim therefore “does not state facts sufficient to constitute a cause of action,” and is subject to dismissal 14 for this reason alone. Civ. Proc. Code § 430.10(e). 15 2. Plaintiffs’ Unruh Act Claim Fails for Lack of Standing. 16 Even if Plaintiffs are permitted to rely on the MC’s general allegations, their Unruh Act claim still 17 fails. As an initial matter, Plaintiffs lack standing to bring the claim. Unruh Act plaintiffs “cannot sue for 18 discrimination in the abstract, but must actually suffer the discriminatory conduct.” Angelucci v. Century 19 Supper Club, 41 Cal. 4th 160, 175 (2007). “The focus of the standing inquiry is on the plaintiff, not on 20 the issues he or she seeks to have determined; he or she must have a special interest that is greater than 21 the interest of the public at large and that is concrete and actual rather than conjectural or hypothetical.” 22 Osborne v. Yasmeh, 1 Cal. App. 5th 1118, 1127 (2016). Plaintiffs must allege they have personally “been 23 the victim of the defendant’s discriminatory act.” White v. Square, Inc., 7 Cal. 5th 1019, 1025 (2019). 24 Plaintiffs have not pleaded anything resembling a “concrete and actual” personal injury that can 25 give rise to standing under the Unruh Act. Neither the MC nor amended SFCs allege facts suggesting that 26 any Defendant “intentionally direct[ed] harmful content” to any individual Plaintiff “because of their 27 gender and age.” MC ¶ 1020. Plaintiffs do not identify any content they did or did not see because of 28 supposed discrimination or any opportunities to use Defendants’ services that they were deprived of. 14 DEM. TO CLAIMS FOR SEX AND AGE DISCRIMINATION AND NON-PRODUCT NEGLIGENT FAILURE TO WARN; Case No. 22STCV21355 1 Instead, they allege only generally that Defendants’ services may target content to unidentified users based 2 on gender or age. E.g., id. ¶ 743. Plaintiffs allege nothing about their own experiences on Defendants’ 3 services, much less identify how Defendants allegedly treated them differently from other users based on 4 gender or age. Their claims are entirely abstract, hypothetical, and disconnected from their individual 5 circumstances. Indeed, nothing in the SFCs distinguishes these seven Plaintiffs from those who 6 abandoned their Unruh Act claims, or even hints that these Plaintiffs suffered personal discrimination 7 setting them apart. Particularly if only certain Plaintiffs contend they have viable Unruh Act claims, they 8 must establish an individualized basis for bringing that claim beyond the generic allegations in the 9 MC. There is nothing like that here.6 The Court need go no further to dismiss this claim. 10 3. Plaintiffs Fail to State a Claim for Violation of the Unruh Act. 11 Apart from their lack of standing, the general allegations in the MC simply do not state a viable 12 claim for intentional discrimination under the Unruh Act. The Unruh Act “does not purport to prohibit all 13 differences in treatment or accommodations offered, only unreasonable, arbitrary or invidious 14 discrimination.” Sunrise Country Club Ass’n v. Proud, 190 Cal. App. 3d 377, 381 (1987). To meet this 15 high bar, a plaintiff must show intentional discrimination, which requires “allegations supporting ‘willful, 16 affirmative misconduct’ with the specific intent ‘to accomplish discrimination on the basis of [a protected 17 trait].’” Martinez v. Cot’n Wash, Inc., 81 Cal. App. 5th 1026, 1036 (2022) (quoting Koebke v. Bernardo 18 Heights Country Club, 36 Cal. 4th 824, 853–54 (2005)). Allegations that a facially neutral policy has a 19 disparate impact on a particular protected group do not state a claim for violation of the Unruh 20 Act. Koebke, 36 Cal. 4th at 853. 21 Plaintiffs do not satisfy these requirements. Even taken as true, the allegations in the MC do not 22 amount to invidious discrimination against younger female users regarding their ability to use Defendants’ 23 services, including to share, view, and exchange content. Instead, Plaintiffs only allege that Defendants’ 24 generally applicable recommendation tools sometimes surface harmful content (e.g., MC ¶ 753), and that 25 some girls and young women have been recommended certain kinds of content to which they are allegedly 26 6 27 Plaintiffs’ claims are especially weak given that most Plaintiffs do not even specifically allege their own gender, much less that Defendants categorized them as female for content recommendation purposes. See 28 A.S. SFC; K.K. SFC; K.L. SFC; N.S. SFC; P.F. SFC (identifying Plaintiffs only by initials). 15 DEM. TO CLAIMS FOR SEX AND AGE DISCRIMINATION AND NON-PRODUCT NEGLIGENT FAILURE TO WARN; Case No. 22STCV21355 1 particularly vulnerable, such as content relating to beauty standards or eating disorders (e.g., id. ¶¶ 309, 2 1020). For multiple reasons, these allegations fail to plead a violation of the Unruh Act. 3 First, the gravamen of Plaintiffs’ allegations is not that Defendants denied them “full and equal 4 accommodations, advantages, facilities, privileges, or services,” Civ. Code § 51(b),7 but instead that 5 Plaintiffs were harmed by objectionable third-party content. Plaintiffs do not allege that they were 6 deprived of some opportunity to use Defendants’ services on equal terms with older men or that they were 7 denied access to features or information on the basis of their sex and age. Instead, Plaintiffs impermissibly 8 seek to remedy “traditional wrongs arising out of tort,” not “arbitrary discrimination.” Gayer v. Polk 9 Gulch, Inc., 231 Cal. App. 3d 515, 525 (1991); accord Ramirez v. Wong, 188 Cal. App. 4th 1480, 1485 10 (2010) (Unruh Act claim failed because manager’s unlawful entry into female plaintiffs’ apartment and 11 use of their intimate possessions “had nothing to do with the denial of equal accommodations or facilities 12 on the basis of sex”). 13 This sharply distinguishes Plaintiffs’ claim from that in Liapes v. Facebook, Inc., 95 Cal. App. 5th 14 910 (2023). Liapes alleged that Facebook violated the Unruh Act by “requir[ing] all advertisers to choose 15 the age and gender of its users who will receive ads,” “encourag[ing] them to narrow the age range and 16 genders of” the target audience, and using an algorithm that “relies heavily on age and gender to determine 17 which users will actually receive the ad.” Id. at 915–17. The result, Liapes alleged, was that “women and 18 older people were categorically excluded from receiving various insurance ads—an admitted service of 19 Facebook—on its platform.” Id. at 923 (emphasis added). Liapes identified particular insurance ads that 20 she allegedly did not see, because they were served only to male and/or younger users, and the court held 21 that, as pled, she “actually suffered discrimination” since “she was deprived of information regarding 22 insurance opportunities” that she was “ready and able to pursue.” Id. at 921. 23 Plaintiffs here allege nothing like that. There is no suggestion that Defendants’ content 24 recommendations in any way limit the material Plaintiffs can access on Defendants’ services (nor, as 25 discussed, do they identify any specific content that they personally did not see). Rather, Plaintiffs allege 26 7 27 The Court should not credit Plaintiffs’ conclusory repetition of the words of the relevant legal test (MC ¶ 1020). What matters is that the facts alleged, taken as true, do not amount to an actionable Unruh Act 28 violation. See O’Grady v. Merch. Exch. Prods., Inc., 41 Cal. App. 5th 771, 777 (2019). 16 DEM. TO CLAIMS FOR SEX AND AGE DISCRIMINATION AND NON-PRODUCT NEGLIGENT FAILURE TO WARN; Case No. 22STCV21355 1 that Defendants’ content recommendations are more likely to cause harm to them than other users. E.g., 2 MC ¶ 119 (alleging certain features caused body image issues that “were more prominent among 3 adolescent girls, given their higher susceptibility to social pressures related to their bodies”); id. ¶ 484 4 (similar); id. ¶ 633 (similar); see also id. ¶ 316 (“teen girls are eight times more likely to engage in negative 5 social comparison than” teen boys). That is not a cognizable claim for discrimination under the Unruh 6 Act. For example, while a bookstore may violate the Act by categorically refusing to sell certain books 7 to women, the store would not violate the Act by recommending books to women that are more popular 8 among its female customers or by directing younger customers to the children’s book section—even if the 9 content in those books ended up being harmful to some of those readers. Cf. Sunrise Country Club Ass’n, 10 190 Cal. App. 3d at 380–81 (“adult” and “family” sections of condo development permissible). The latter 11 scenarios simply do not involve depriving users of “the full and equal accommodations, advantages, 12 facilities, privileges, or services” of a business establishment. Civ. Code § 51(b). 13 Second, Plaintiffs do not allege that Defendants had a “specific intent ‘to accomplish 14 discrimination,’” as the Unruh Act requires. Martinez, 81 Cal. App. 5th at 1036 (emphasis added). Even 15 if Plaintiffs could show that girls and young women were exposed to harmful third-party content at a 16 higher rate than male users (which they have not actually alleged), or that such third-party content had a 17 more harmful effect on girls and young women than on male users (e.g., MC ¶¶ 309, 315–316), that would, 18 at most, amount to the kind of disparate impact that does not violate the Unruh Act. See, e.g., Turner v. 19 Ass’n of Am. Med. Colls., 167 Cal. App. 4th 1401, 1409 (2008) (rejecting claim that policies were 20 “discriminatory because they have a disparate impact”); Harris v. Cap. Growth Invs. XIV, 52 Cal. 3d 1142, 21 1172–73 (1991) (claim alleging disproportionate effect on women did not state Unruh Act violation); 22 Ebeid v. Facebook, Inc., 2019 WL 2059662, at *7 (N.D. Cal. May 9, 2019) (dismissing claim challenging 23 online posting restrictions where plaintiff failed to “adequately allege[] that Facebook’s conduct was 24 animated by discriminatory intent”). 25 Plaintiffs’ own allegations confirm that their claim sounds, at most, in disparate impact. While the 26 MC contains scattered suggestions that certain types of content were recommended to girls (e.g., MC 27 ¶ 376 (“topics eliciting appearance comparison comprise one third of what teen girls see on Instagram”); 28 id. ¶ 580 (TikTok “promoted” “extreme diet videos” to “several teenage girls”), Plaintiffs do not allege 17 DEM. TO CLAIMS FOR SEX AND AGE DISCRIMINATION AND NON-PRODUCT NEGLIGENT FAILURE TO WARN; Case No. 22STCV21355 1 that this content was shown to users because of their age or gender—rather than because, e.g., they had 2 previously interacted with similar content. Nor do they allege that this content was not shown to users of 3 different demographics. In fact, the MC repeatedly asserts harm to boys based on the same alleged 4 conduct—i.e., that Defendants’ algorithms recommend harmful third-party content to them. E.g., id. 5 ¶¶ 619–621, 861(c). This underscores that Plaintiffs take issue with content that is disseminated to all 6 users via Defendants’ algorithms, while suggesting (at most) that some content may be more harmful to 7 some young female users. But the Unruh Act “does not extend to practices and policies that apply equally 8 to all persons.” Turner, 167 Cal. App. 4th at 1408; accord Young v. Facebook, Inc., 790 F. Supp. 2d 1110, 9 1116 (N.D. Cal. 2011) (dismissing claim where the “essence of [the] complaint [was] that Facebook’s 10 account management and customer service systems treat all users in the same cold, automated way”). 11 Plaintiffs’ allegations about the data that allegedly drive Defendants’ content recommendation 12 algorithms reinforce that Plaintiffs seek to challenge generally applicable conduct. For one thing, the MC 13 asserts that Defendants’ algorithms reflect numerous factors, most of which relate to the user’s own 14 activity, such as the content the user has previously searched for, viewed, and interacted with. MC ¶¶ 295– 15 296, 302, 468, 559, 563–564, 583, 743–745; cf. Twitter, Inc. v. Taamneh, 598 U.S. 471, 499 (2023) 16 (defendants’ algorithms “allegedly sort the content by information and inputs provided by users and found 17 in the content itself”). Surfacing particular types of content for a given user based on a wide array of 18 behavioral or personal information is not discrimination, let alone the sort of invidious discrimination the 19 Unruh Act addresses. E.g., Gayer, 231 Cal. App. 3d at 525 (Act does not “cover discrimination which 20 is . . . based on the conduct of an individual,” nor “discrimination based on purely personal grounds”); 21 Scripps Clinic v. Super. Ct., 108 Cal. App. 4th 917, 934 (2003) (policy based “upon [a] patient’s conduct” 22 was not “the kind of discrimination that the Unruh Civil Rights Act was meant to preclude”). 23 Moreover, that some algorithms allegedly may consider users’ gender and age among scores of 24 other signals in suggesting content to particular users, as alleged here (e.g., MC ¶¶ 225, 743), also does 25 not amount to a “specific intent” to discriminate. E.g., Cohn v. Cori