Preview
PANISH | SHEA | BOYLE | RAVIPUDI LLP
BRIAN J. PANISH, State Bar No. 116060
bpanish@psbr.law Electronically FILED by
Superior Court of California,
RAHUL RAVIPUDI, State Bar No. 204519 County of Los An geles
rravipudi@psbr.law 2/15/2024 6:45 PI
JESSE CREED, State Bar No. 272595 David W, Slayton,
jcreed@psbr.law Executive Officer/Clerk of Court,
By D. Jackson Aubry, Deputy Clerk
11111 Santa Monica Boulevard, Suite 700
Los Angeles, CA 90025
Telephone: 310.477.1700
Facsimile: 310.477.1699
MORGAN & MORGAN
EMILY C. JEFFCOTT (admitted pro hac vice)
ejeffcott@forthepeople.com
633 West Fifth Street, Suite 2652
Los Angeles, CA 90071
Tel: (213) 787-8590
10 Fax: (213) 418-3983
11 BEASLEY ALLEN
JOSEPH VANZANDT (admitted pro hac vice)
12 joseph.vanzandt@beasleyallen.com
234 Commerce Street
13 Montgomery, AL 36103
Tel: (334)269-2343
14
Co-Lead and Co-Liaison Counsel for Plaintiffs
15
16 SUPERIOR COURT OF THE STATE OF CALIFORNIA
17 FOR THE COUNTY OF LOS ANGELES
18 COORDINATION PROCEEDING JUDICIAL COUNCIL COORDINATION
SPECIAL TITLE [RULE 3.400] PROCEEDING NO. 5255
19
SOCIAL MEDIA CASES For Filing Purposes: 22STCV21355
20
21 THIS DOCUMENT RELATES TO: Judge: Hon. Carolyn B. Kuhl
Dept.: SSC-12
22 (Christina Arlington Smith, et al., v. TikTok
Inc., et al., Case No. 22STCV21355) PLAINTIFFS’ OPPOSITION TO
23
DEFENDANTS’ MOTION TO STRIKE
24 (A.S. et al. v. Meta Platforms, Inc. et al., Case THIRD-PARTY MISCONDUCT AND
No. 22STCV28202) ONLINE CHALLENGE ALLEGATIONS
25 FROM IDENTIFIED SHORT-FORM
(Glenn-Mills v. Meta Platforms, Inc. et al., COMPLAINTS
26 Case No. 23SMCV03371)
Date: March 20, 2024
27
Time: 1:45 p.m.
28 Dept.: SSC-12
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE THIRD-PARTY MISCONDUCT AND
ONLINE CHALLENGE ALLEGATIONS FROM IDENTIFIED SHORT-FORM COMPLAINTS
(JS. et al. v. Meta Platforms, Inc. et al., Case
No. CV 2022-1472)
(K.K. et al. v. Meta Platforms, Inc. et al.,
Case No. 23SMCV03371)
(K.L. et al. v. Meta Platforms, Inc. et al., Case
No. CIV SB 2218921)
(N.S. et al. v. Snap Inc., Case No.
22CV019089)
(P.F. et al. v. Meta Platforms, Inc. et al., Case
No. 23SMCV03371)
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE THIRD-PARTY MISCONDUCT AND
ONLINE CHALLENGE ALLEGATIONS FROM IDENTIFIED SHORT-FORM COMPLAINTS
TABLE OF CONTENTS
Page
INTRODUCTION
IL FACTUAL ALLEGATIONS
Til. DEFENDANTS DID NOT TIMELY MOVE TO STRIKE THE MASTER
COMPLAINT ALLEGATIONS
IV. DEFENDANTS’ MOTION TO STRIKE FAILS ON THE MERITS
A Defendants have a duty to not cause harms—even harms from third parties
1 Defendants created a risk of harm, thereby establishing a duty. 00.0.0... cece 4
2 Defendants have a special relationship with minor USETS. ..........ccceeeeeseeeteeeteeeeeee 5
10
3 Plaintiffs adequately pled proximate Causation. .........cceces
ees eeeseeeeeeeseeeeteeseeeseeees 7
11
Section 230 Does Not Bar Plaintiffs’ Sex Abuse, Challenge and CSAM Claims
12
1 Section 230’s text and purposes do not support Defendants’ interpretation. .......... 9
13
2 This Court should rejected Defendants’ harms-based standard. 11
14
3 Plaintiffs do not treat Defendants as publishers for sex abuse or CSAM. 12
15
4 Plaintiffs do not treat TikTok as a publisher of others’ content for
16 challenges. 15
17 Cc The First Amendment Does Not Prevent Relief from Challenges 17
18 V. CONCLUSION.. 17
19
20
21
22
23
24
25
26
27
28
1
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE THIRD-PARTY MISCONDUCT AND
ONLINE CHALLENGE ALLEGATIONS FROM IDENTIFIED SHORT-FORM COMPLAINTS
TABLE OF AUTHORITIES
Page
CASES
A.M. v. Omegle,
614 F. Supp. 3d 814 (D. Or. 2022) 13, 14
Altria v. Good,
555 U.S. 70 (2008) 10
Barnes v. Yahoo,
570 F.3d 1096 (9th Cir. 2012) 11, 12,14
Bigbee v. Pac. Tel. & Tel. Co.,
34 Cal.3d 57 (1983)
10
Bride v. Snap,
11 2023 WL 2016927 (C.D. Cal. Jan. 10, 2023) 12
12 Brown v. Mortensen,
51 Cal. 4th 1052 (2011) 10
13
Brown v. USA Taekwondo,
14 11 Cal. Sth 204 (2021) 3,4
15 Cabral v. Ralph’s Grocery,
51 Cal.4th 764 (2011)
16
Carafano v. Metrosplash.com,
17 339 F.3d 1119 (9th Cir. 2003) 12
18 Chaney v. Superior Court,
39 Cal. App. 4th 152 (1995)
19
CLD Constr. v. City of San Ramon,
20 120 Cal. App. 4th 1141 (2004)
21 Crosby v. Twitter,
921 F.3d 617 (6th Cir. 2019)
22
Delgado v. Trax Bar & Grill,
23 36 Cal. 4th 224 (2005)
24 Demetriades v. Yelp,
228 Cal. App. 4th 294 (2014) 11, 12, 14, 15
25
Dix v. Live Nation Entertainment,
26 56 Cal. App. 5th 590 (2020)
27 Doe II v. MySpace,
175 Cal. App. 4th 561 (2009) . 13
28
ii
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE THIRD-PARTY MISCONDUCT AND
ONLINE CHALLENGE ALLEGATIONS FROM IDENTIFIED SHORT-FORM COMPLAINTS
Doe v. Facebook,
142 S. Ct. 1087 (2022) 13
Doe v. Grindr,
2023 WL 9066310 (C.D. Cal. Dec. 28, 2023) 14
Doe v. Internet Brands,
824 F.3d 846 (9th Cir. 2016) 14, 15
Doe v. MySpace,
528 F.3d 413 (5th Cir. 2008) 13
Doe v. Reddit,
2021 WL 5860904 (C.D. Cal. Oct. 7, 2021).. 15
Doe v. Snap,
88 F.4th 1069 (Sth Cir. 2023) 13
10 Dyroffv. Ultimate Software,
934 F.3d 1093 (9th Cir. 2019) 5, 12, 15
11
Erie Ins. v. Amazon.com,
12 925 F.3d 135 (4th Cir. 2019) 11
13 Fair Hous. Council of San Fernando Valley v. Roommates.com,
521 F.3d 1157 (9th Cir. 2008) 11,12
14
Ferraro v. Camarlinghi,
15 161 Cal. App. 4th 509 (2008)
16 Fields v. Twitter,
881 F.3d 739 (9th Cir. 2018)
17
Force v. Facebook,
18 934 F.3d 53 (2d Cir. 2019).. 12
19 Hacala v. Bird Rides,
90 Cal. App. 5th 292 (2023) 4,7
20
Hassell v. Bird,
21 5 Cal. 5th 522 (2018) 11,14
22 Henderson v. Source for Pub. Data,
53 F.4th 110 (4th Cir. 2022) 11
23
Herrick v. Grindr,
24 765 F. App’x 586 (2d Cir. 2019) 15
25 HomeAway.com v. Santa Monica,
918 F.3d 676 (9th Cir. 2019) 11,14
26
In re Facebook,
27 625 S.W.3d 80 (Tex. 2021) 13, 14
28
iil
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE THIRD-PARTY MISCONDUCT AND
ONLINE CHALLENGE ALLEGATIONS FROM IDENTIFIED SHORT-FORM COMPLAINTS
In re Soc. Media,
2023 WL 7524912 (N.D. Cal. Nov. 14, 2023) 6, 14
Isaacs v. Huntington Mem. Hosp.,
38 Cal. 3d 112 (1985)
Jane Doe No. 1 v. Uber,
79 Cal. App. 5th 410 (2022)
Jones v. Rath Packing,
430 U.S. 519 (1977)
Kesner v. Superior Court of Alameda Cnty
1 Cal. Sth 1146 (2016)
Kimzey v. Yelp!,
836 F.3d 1263 (9th Cir. 2016) 12, 15
10 Kuciemba v. Victory Woodworks,
14 Cal. Sth 993 (2023) 3,4
11
L.W. v. Snap,
12 2023 WL 3830365 (S.D. Cal. June 5, 2023). 12
13 Lee v. Amazon.com,
76 Cal. App. 5th 200 (2022) 11, 12, 14, 15
14
Lemmon v. Snap,
15 995 F.3d 1085 (9th Cir. 2021) 9, 12, 15, 16
16 Malwarebytes v. Enigma,
141 S. Ct. 13 (2020). 14
17
Margaret W. v. Kelley R.,
18 139 Cal. App. 4th 141 (2006)
19 Marshall's Locksmith v. Google,
925 F.3d 1263 (D.C. Cir. 2019) 15
20
MaryM. v. City of L.A.,
21 54 Cal. 3d 202 (1991)
22 Maynard v. Snapchat,
870 S.E.2d 739 (Ga. 2022). 12
23
Modisette v. Apple,
24 30 Cal. App. Sth 136 (2018)... 7,9
25 Noble v. LA Dodgers,
168 Cal. App. 3d 912 (1985)
26
Pamela L. v. Farmer,
27 112 Cal. App. 3d 211 (1980)
28
lv
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE THIRD-PARTY MISCONDUCT AND
ONLINE CHALLENGE ALLEGATIONS FROM IDENTIFIED SHORT-FORM COMPLAINTS
People v. Bollaert,
248 Cal.App.4th 699 (2016) 16
PH II y. Superior Ct.,
33 Cal. App. 4th 1680 (1995) 2,o>3, 16
Prager U. v Google,
85 Cal. App. 5th 1022 (2022) 12
Regents of U. of Cal. v. Super. Ct.
4 Cal. 5th 607 (2018) 5,8
Romero v. Superior Court,
89 Cal. App. 4th 1068 (2001)
San Jose Sharks v. Superior Ct. of Santa Clara Cnt
316 Cal. Rptr. 3d 393 (2023)
10 San Jose Sharks v. Superior Ct. of Santa Clara Cnty.
98 Cal. App. Sth 158 (2023)
11
State Dep't of State Hosps. v. Superior Ct.,
12 61 Cal. 4th 339 (2015)
13 Tarasoff v. Regents of U. of Cal.,
17 Cal. 3d 425 (1976)
14
Twitter v. Taamneh,
15 143 S. Ct. 1206 (2023)
16 Twitter, Inc. v. Taamneh,
598 U.S. 471 (2023).
17
Wallace v. Der-Ohanian,
18 199 Cal. App. 2d 141 (1962)
19 Weirum v. RKO General, Inc.,
15 Cal. 3d 41 (1975)
20
Young v. Facebook,
21 2010 WL 4269304 (N.D. Cal. Oct. 25, 2010)
22 Ziencik v. Snap,
2023 WL 2638314 (C.D. Cal. Feb. 3, 2023),
23
24
STATUTES
25
47 U.S.C. § 230 passim
26
47 U.S.C. § 230(b)(2) 10
27
47 U.S.C. § 230(b)(3) ... 10
28
Vv
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE THIRD-PARTY MISCONDUCT AND
ONLINE CHALLENGE ALLEGATIONS FROM IDENTIFIED SHORT-FORM COMPLAINTS
47 U.S.C. § 230(c)(1)
47 U.S.C. § 230(e)(3).
47 U.S.C. § 230(£)(3) 16
C.R.C. Rule 3.1322(b)
CAL. Civ. PRoc. CODE § 435(B)(1)
Cal. Civ. Proc. Code § 435(b)(3)
CAL. Civ. PROC. CODE § 452
Cal. Proc. 6th Plead § 1017(2) (5 Witkin 2023)
Clv. PRETRIAL CH. 4-J § 2 (O’CONNOR’S CALIFORNIA PRACTICE 2023).
10 Civ. Proc. Before Trial Ch. 7(1)-B § 7:162 (The Rutter Group Cal. Practice Guide)
11 Rest. 2d Torts § 431 (1965)
12 Rest. 2d Torts § 433 (1965)
13 Rest. 3d Torts § 19 (2010)
14
15 MISCELLANEOUS
16 CACTI Jury Instruction No. 412
17
18
19
20
21
22
23
24
25
26
27
28
vi
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE THIRD-PARTY MISCONDUCT AND
ONLINE CHALLENGE ALLEGATIONS FROM IDENTIFIED SHORT-FORM COMPLAINTS
1 I INTRODUCTION
Defendants’ motion to strike is untimely as to the Master Complaint allegations and fails on the
merits. Defendants seek to strike many allegations in the Master Complaint, but they did not timely file a
motion to strike alongside their original demurrer and have already answered the Master Complaint.
Accordingly, this Court should deny Defendants’ motion to strike allegations in the Master Complaint.
To the extent this Court reaches the merits of Defendants’ motion to strike, this Court should again
reject their Section 230 and First Amendment arguments. The at-issue Short Form Complaints (SFC)
allege several harms, such as compulsive use/addiction, depression, anxiety, suicidality, self-harm, as well
as harms resulting from sexual abuse (for six of the identified Short Form Plaintiffs) and dangerous
10 challenges (for one). As this Court has previously held, Plaintiffs properly allege that Defendants’ conduct
11 created a risk of harm to—and did harm—Plaintiffs. For this and other reasons, the Court should reject
12 Defendants’ argument that they lack any duty to not increase the risk of harm from third party actors.
13 Section 230 does not bar relief for the distinct harms from sexual abuse and dangerous challenges.
14 Defendants repackage the repudiated but-for causation standard as a harms-based standard, but controlling
15 precedent and law of this case rejects a but-for standard, however worded, and Plaintiffs have satisfied the
16 pertinent duty-based inquiry. The First Amendment also does not bar any relief for these harms because,
17 as this Court has already recognized, Plaintiffs do not seek to hold Defendants liable for any content itself,
18 but rather Defendants’ negligent design oftheir platforms.
19 Il. FACTUAL ALLEGATIONS
20 Defendants’ platforms use several methods to attract and addict children. MC §| 270-275, 278,
21 440-451, 592, 606, 726, 736. For example, challenges to “foster[] competition and the social rewards of
22 posting a challenge video,” which “incentivizes users to engage with the product continuously.” MC §
23 608. For its part, TikTok knows that its challenges are particularly harmful to adolescents and children.
24 MC {{ 618-626; see also §| 767 (YouTube). Defendants’ platforms have also facilitated child sexual
25 exploitation on a shocking scale. MC 4] 365-95 (Meta), 472-73, 494-513 (Snap), 666-82 (TikTok), 774-
26 802 (YouTube). The platforms do so through ineffective age verification that allow predators to
27 masquerade as children; recommendations that function as a digital matchmaking service for pedophiles
28 and kids; public profiles for children; allowing predators to discover and groom children; and providing
1
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE THIRD-PARTY MISCONDUCT AND
ONLINE CHALLENGE ALLEGATIONS FROM IDENTIFIED SHORT-FORM COMPLAINTS
mechanisms for cash payments or gifts from adults to children—all without parental controls and parental
notification. MC 4¥| 366, 372-73 (Meta), 438, 447, 481, 499 (Snapchat), 503, 550, 555-56, 670, 677
(TikTok), 716, 736 (YouTube). Further, Snapchat provides pedophiles with additional information to find
and groom children. MC ff 438, 478, 501, 511. Applicable here, the SFCs raise claims for, inter alia,
negligence and non-product negligent failure to warn with injuries such as addiction/compulsive use,
depression, anxiety, self-harm, suicidality, and attempted suicide.! A.S., K.L., N.S., Glenn-Mills, P.F.,
and K.K. also allege harms from exploitation or sexual abuse, and J.S. alleges harm from viral challenges.”
lll. DEFENDANTS DID NOT TIMELY MOVE TO STRIKE THE MASTER COMPLAINT
ALLEGATIONS
Defendants’ motion targets many allegations in the Master Complaint, MTS {J 8-39, but this
10
ignores that Defendants failed to timely file a motion to strike alongside their original demurrer and have
11
already answered the Master Complaint. CAL. Clv. PROC. CODE § 435(b)(1, 3); C.R.C., Rule 3.1322(b); 5
12
Witkin, CAL. Proc. 6th Plead § 1017(2) (2023); Rutter, CAL. PRAC. GUIDE CIv. PRO. BEFORE TRIAL Ch.
13
7(D)-B §7:162. Defendants cannot now file a motion to strike allegations in the Master Complaint. To hold
14
otherwise would mean that Defendants can file new motions to strike the Master Complaint’s case wide
15
allegations for each and every plaintiff in this litigation.
16
Iv. DEFENDANTS’ MOTION TO STRIKE FAILS ON THE MERITS
17
To the extent the Court reaches the merits of Defendants’ motion to strike, it should nonetheless
18
be denied. “[W]hen a substantive defect is clear from the face of a complaint, such as a violation of the
19
applicable statute of limitations or a purported claim of right which is legally invalid, a defendant may
20
attack that portion ofthe cause of action by filing a motion to strike.” PH IJ v. Superior Ct. (1995) 33 Cal.
21
App. 4th 1680, 1682-83. However, the Court of Appeal has cautioned that “such use of the motion to
22
strike should be cautious and sparing. We have no intention of creating a procedural ‘line item veto’ for
23
24
25 ! Am. Short Form Compl. (SFC), 4.S. v. Meta, 22STCV28202 (Jan. 5, 2024) at 4, 6, 8; Am. SFC, K.L. v.
26
Meta, CIV SB 2218921 (Jan. 5, 2024) at 4, 6, 8; Am. SFC, Glenn Mills v. Meta, 23SMCV03371 (Jan. 5,
2024) at 4, 6, 8; Am. SFC, N.S. v. Snap, 22CV019089 (Jan. 5, 2024) at 4, 6, 8; Am. SFC, P.F. v. Meta,
27 23SMCV03371 (Jan. 5, 2024) at 4, 6, 8; 2d Am. SFC, K.K. v. Meta, 23SMCV03371 (Jan. 17, 2024) at 4,
6, 8; 2d Am. SFC, JS. v. Meta, CV2022-1472 (Jan. 9, 2024) at 4, 6, 8.
28 2 See e.g., A.S. SFC at 5; see also J.S. SFC at 5.
2
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE THIRD-PARTY MISCONDUCT AND
ONLINE CHALLENGE ALLEGATIONS FROM IDENTIFIED SHORT-FORM COMPLAINTS
the civil defendant.” Jd. at 1683; but see also Ferraro v. Camarlinghi (2008) 161 Cal. App. 4th 509, 528
(holding that motion to strike is improper for substantive defects) (“While this language might be broadly
construed to reach any deficiency in a pleading, including substantive ones, that is not its purpose or effect.
Rather it authorizes the striking of a pleading due to improprieties in its form or in the procedures pursuant
to which it was filed. This provision is commonly invoked to challenge pleadings filed in violation of a
deadline, court order, or requirement of prior leave of court.”) (emphasis in original); O’CONNOR’S CAL.
PRACTICE, Civil Pretrial Ch. 4-J § 2 (2023 ed.) (noting that Courts of Appeal “disagree” as to whether a
motion to strike is permissible to challenge a substantive defect in a complaint).
As with a demurrer, the Court should “read allegations of a pleading subject to a motion to strike
10 as a whole, all their parts in their context, and assume their truth.” San Jose Sharks v. Superior Ct. of Santa
11 Clara Cnty. (2023) 98 Cal. App. Sth 158, 316 Cal. Rptr. 3d 393, 399. Further, “[iJn the construction of a
12 pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view
13 to substantial justice between the parties.” CAL. CIv. PROC. CODE § 452. In addition, “[w]here the defect
14 raised by a motion to strike or by demurrer is reasonably capable of cure, leave to amend is routinely and
15 liberally granted to give the plaintiff a chance to cure the defect in question.” CLD Constr. v. City of San
16 Ramon (2004) 120 Cal. App. 4th 1141 (citation omitted).
17 A. Defendants have a duty to not cause harms—even harms from third parties
18 Each Plaintiffat issue brings negligence claims with addiction harms and several harms stemming
19 from and relating to their social media addiction—including sexual exploitation and injury from dangerous
20 challenges. Contrary to Defendants’ argument, this Court should not strike Plaintiffs’ damages claims that
21 stem from sexual exploitation, CSAM, and dangerous challenges. California recognizes claims related to
22 harm caused in whole or in part by third parties (1) where the defendant also was a cause of the harm or
23 (2) where the defendant has a special relationship with either the victim or the third party. MTS at 23-24
24 (citing Brown v. USA Taekwondo (2021) 11 Cal. Sth 204, 216); Kuciemba v. Victory Woodworks (2023)
25 14 Cal. 5th 993, 1016-18 (where defendant’s conduct caused injury—even where causation is indirect—
26 California law has “never suggested that a special relationship was a required prerequisite for finding a
27 duty of care.”). Because Plaintiffs’ claims can meet either prong, Defendants’ Motion should be denied.
28
3
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE THIRD-PARTY MISCONDUCT AND
ONLINE CHALLENGE ALLEGATIONS FROM IDENTIFIED SHORT-FORM COMPLAINTS
1 Defendants created a risk of harm, thereby establishing a duty.
“Duty, under the common law, is essentially an expression of policy that 666 the plaintiff's interests
are entitled to legal protection against the defendant’s conduct.‘ Kuciemba, 14 Cal.5th at 1016. The
“general rule” of duty in California is established by Civil Code section 1714. Cabral v. Ralph’s Grocery
(2011) 51 Cal.4th 764, 771. Defendants contend Plaintiffs’ injuries were caused by third party content,
and they cannot be held liable absent a special relationship. This depiction “is not consistent with a fair
and reasonable reading of the complaint’s allegations.” Hacala v. Bird Rides (2023) 90 Cal. App. 5th 292,
311. The complaint does not allege third-party conduct was the sole cause of harm. For instance, Plaintiffs
allege that Defendants’ platforms “promote and dramatically exacerbate sexual exploitation, the spread of
10 CSAM, sextortion, and other socially maladaptive behavior that harms children.” See, e.g., MC {J 365-
11 402 (Meta), 494-513 (Snapchat), 666-682 (TikTok), 774-802 (YouTube). Indeed, Plaintiffs’ claims
12 involving third party conduct involve Defendants’ creation of risks. Plaintiffs have alleged that Defendants
13 have created a risk of harm through their design of addictive platforms in a manner that subjects them to
14 harms from CSAM, sex exploitation, and dangerous challenges, despite knowledge of the risks. MC ff
15 52, 78, 80-81, 140 (all Defendants), 221, 234, 236-37, 268-69, 332 (Meta), 410-412, 439-40, 446, 454,
16 465 (Snapchat), 529, 535, 557, 601 (TikTok), 713, 723-25, 727, 740 (YouTube), 830, 833, 929.
17 Even if third-party conduct were the “immediate cause” of the harm to Plaintiffs, a special
18 relationship is not required. Kuciemba, 15 Cal. Sth at 1017 (noting “exclusive focus on causation in this
19 context is inconsistent with [California] case law”). The no-duty-to-protect rule does not apply when a
20 claim is based on “an affirmative act of defendant which created an undue risk of harm.” Weirum, 15
21 Cal.3d at 41. The proper inquiry is “whether the defendant’s ‘entire conduct created a risk of harm’ to the
22 plaintiff,” Kuciemba, 15 Cal. Sth at 1017 (quoting Brown, 11 Cal.5th at n.6), or “increased the risk of harm
23 to the plaintiff.” Brown, 11 Cal.Sth at 215 n. 7; see also Isaacs v. Huntington Mem. Hosp. (1985) 38 Cal.
24 3d 112, 131. Here, Defendants’ conduct, including their design choices, “contributed to the risk of harm
25 that resulted in plaintiffs’ injuries.” Hacala, 90 Cal.App.Sth 311; see, e.g., MC {J 825-849, 852-867, 870-
26 891, 894-910, 913-937, 940-954.? Defendants likewise fail to analyze the Rowland factors, which could
27
3 Defendants cite inapposite cases where the sole basis for liability was failure to control third parties. See
28
4
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE THIRD-PARTY MISCONDUCT AND
ONLINE CHALLENGE ALLEGATIONS FROM IDENTIFIED SHORT-FORM COMPLAINTS
permit an exception to an otherwise owed duty.* As such, Defendants cannot use third-party actions as a
shield for their own negligent conduct.
2. Defendants have a special relationship with minor users.
Because this Court has determined, in considering Plaintiffs’ addiction claims, that Plaintiffs have
properly alleged that “Defendants’ conduct directly harmed [them],” Dem. Order at 49:22-23, the Court
need not reach the issue of whether there was a special relationship between Defendants and Plaintiffs.>
But even if a special relationship is required obtain relief for harms from CSAM, sexual abuse, and
challenges (which is denied), such a relationship exists. California courts have found special relationships
in many contexts. In Tarasoffv. Regents of U. of Cal. (1976) 17 Cal. 3d 425, for example, the court held
10 that a psychotherapist, whose patient confessed a plan to kill a specific victim, owed a duty due to a special
11 relationship with the patient. Jd. at 439. The court acknowledged that there may be cases that require
12 “expanding the list of special relationships which will justify departure from [the general rule against
13 liability for third party conduct].” Jd. at n.5; see also Regents of U. of Cal. v. Super. Ct. (2018) 4 Cal. Sth
14 607, 634 (expanding list of “special relationships” by recognizing that colleges have special relationship
15 duty to protect students); Dix v. Live Nation Entertainment (2020) 56 Cal. App. Sth 590, 600 (where
16 plaintiff died from taking drugs at concert, defendant had special relationship with 65,000 invitees).
17 The Regents court gave lower courts guidance on identifying new categories of “special
18 relationships.” /d. at 620-621. The court held that “special relationships” tend to have identifying features,
19 including: (1) “an aspect of dependency in which one party relies to some degree on the other for
20
Dyroffv. Ultimate Software (9th Cir. 2019) 934 F.3d 1093; Jane Doe No. I v. Uber (2022) 79 Cal. App.
21 Sth 410; Young v. Facebook (N.D. Cal. Oct. 25, 2010) 2010 WL 4269304; Ziencik v. Snap (C.D. Cal. Feb.
3, 2023) 2023 WL 2638314. Twitter v. Taamneh, 598 U.S. 471, 500, is similarly unpersuasive as the case
22
involved the degree of culpability under the Justice Against Sponsors of Terrorism Act (JASTA), with the
23 Supreme Court noting “there may be situations where some such duty [to remove content from social
media website] exists, [but] we need not resolve the issue today.” Jd. at 501.
24 4 Plaintiffs incorporate their analysis of the Rowland factors in Section IV.D of Plaintiffs’ Dem. Opp.,
filed August 11, 2023.
25 5 The conduct of Defendants that increases the risks of these harms stem from the features that hold the
attention of users to the point of addiction. See MC § 138 (“[T]he longer adolescent users remain engaged
26
with its products, the higher the risk that adult predators will target them.”). Additionally, the longer
27 children engage with Defendants’ platforms, the more likely they are to be harmed by dangerous
“challenges” that to go viral. See MC 4 533, 608-626, 684, 767-769 (as a result of Defendant’s conduct,
28 “young people are confronted with more and more extreme videos, often resulting in significant harm.”).
5
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE THIRD-PARTY MISCONDUCT AND
ONLINE CHALLENGE ALLEGATIONS FROM IDENTIFIED SHORT-FORM COMPLAINTS
protection,” (2) where one party is “particularly vulnerable” and relies on another who has “superior
control over the means of protection,” and (3) the relationship “especially benefit[s] the party charged
with the duty of care.” /d. (quotations omitted). All features are present here. Child users of social media
depend entirely on the platform operators to protect them from the addictive nature of the platform, as
well as sexual exploitation and dangerous challenges. Children are particularly vulnerable, and the
relationship greatly benefits Defendants, who make billions in advertising revenue from children’s use of
their platforms.® The Regents court further held that the “fact-dependent” special relationship analysis
must be undertaken by lower courts. Jd. at n.4. See also Delgado v. Trax Bar & Grill (2005) 36 Cal. 4th
224, 245 (courts should be more willing to find “special relationship” where duty can be satisfied “by
10 undertaking reasonable, relatively simple, minimally burdensome measures”); MC 4 838 (listing cost-
11 effective, reasonably feasible means Defendants could have used to prevent or mitigate harm).
12 Further, “[s]ociety’s greatest responsibility ... is our common goal of safeguarding our children[.]”
13 Margaret W. v. Kelley R. (2006) 139 Cal. App. 4th 141, 152 (internal citations omitted). California law
14 recognizes that “an adult must anticipate the ordinary behavior of children” and “be more careful when
15 dealing with children than with adults.” CACI Jury Instruction No. 412. Thus, “youthful persons generally
16 are entitled to care proportioned to their inability to foresee and avoid the perils that they may encounter.”
17 Wallace v. Der-Ohanian (1962) 199 Cal. App. 2d 141, 145 (internal citations omitted); see Margaret W.,
18 139 Cal.App.4th at 152 (“a host parent assumes a special relationship with children invited into her
19 home.”).’ Here, Defendants have a special relationship with child users, who were invitees to their
20 platforms. The MDL court recognized that the “duty is informed by the context at issue, namely that
21 plaintiffs are minor children.” Jn re Soc. Media (N.D. Cal. Nov. 14, 2023) 2023 WL 7524912, at *34-*35.
22 Defendants specifically designed features that appeal to minors and encourage their use of the product.
23 MC ff 52, 80, 226, 235-37, 239-41, 245, 261, 269-72, 276, 279-83, 293, 316-22, 322 (Meta), 429, 431-
24 435, 439-440, 446, 450, 452, 472, 475, 478, 481, 484 (Snapchat) 533, 535, 537-540, 542-43, 552, 576,
25
26
6 Plaintiffs incorporate their special relationship analysis in Section IV.D.2 of Plaintiffs’ Dem. Opp.
27 7 See Pamela L., 112 Cal. App. 3d at 211 (adult who invites minor into home assumes special relationship
regardless of whether invitee or licensee); Chaney v. Superior Court (1995) 39 Cal. App. 4th 152, 157
28 (noting child’s dependence on adult); Romero v. Superior Court (2001) 89 Cal. App. 4th 1068, 1072.
6
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE THIRD-PARTY MISCONDUCT AND
ONLINE CHALLENGE ALLEGATIONS FROM IDENTIFIED SHORT-FORM COMPLAINTS
585, 605, 612, 627, 641 (TikTok), 701, 709-711, 713-14, 723-24, 727, 732, 754, 757, 770-73 (YouTube).
Having invited minors to use their platforms to earn advertising revenue and designed their platforms to
enhance engagement, Defendants assumed a duty to not only to protect against known risks but to exercise
reasonable care to discover and warn of unknown hazards. See MC {f 248, 343, 816, 843, 876-878, 882-
885, 900-903, 914-915, 927-928, 946-948, 959-960, 981-982, 995-996 (alleging duty due to minor status).
3. Plaintiffs adequately pled proximate causation.
Proximate causation is a jury question unless “the facts are such that the only reasonable
conclusion is an absence of causation, the question is one of law, not of fact.” State Dep’t of State Hosps.
v. Superior Ct. (2015) 61 Cal. 4th 339, 353 (emphasis added); see also Modisette v. Apple (2018) 30 Cal.
10 App. 5th 136, 152 (quoting State Hosps. standard). As set forth below, the Master Complaint sufficiently
11 alleges that Defendants’ conduct was a substantial factor in causing their harm.
12 Nevertheless, Defendants seek to absolve social media companies for liability in cases involving
13 third-party wrongful conduct, such as the cases in which adults used Defendants’ platforms to exploit
14 children sexually. But “[t]he conduct of a defendant can lack reasonable care insofar as it foreseeably
15 combines with or permits the improper conduct of ... a third party.” Rest. 3d Torts: Phys. & Emot. Harm
16 § 19 (2010). Whether third parties a/so contributed to (some) Plaintiffs’ harms is thus a red herring. Even
17 in such cases, Plaintiffs need only allege foreseeability and that Defendants’ conduct was a substantial
18 factor in bringing about the harm. Hacala, 90 Cal. App. 5th at 311; see also Rest. 2d Torts §§ 431, 433
19 (1965) (explaining that negligent conduct is legal cause of harm if a substantial factor). Plaintiffs do not
20 need to show that Defendants’ wrongful conduct was the sole cause of the alleged injuries. Jd.
21 Plaintiffs’ Master Complaint meets this bar, alleging in detail how defective platform features lead
22 to particular injuries for claims in which a third party a/so contributes to Plaintiffs’ harm. For instance,
23 Defendants’ platforms have wholly inadequate parental control features with easy work-arounds for
24 children to avoid parental oversight. See, e.g., MC {| 259-63, 401-02 (Meta), 475, 468-69, 492-93
25 (Snapchat), 551-55, 576 (TikTok), 714-18 (YouTube). And most Defendants made minors’ profiles public
26 by default until recently, which supplied sexual predators with background information (e.g., list of
27 friends, activities, interests, and locations), making it easier for them to groom and abuse children. Jd. §§]
28 365, 371-74, 381, 385, 387-88, 394, 398-99 (Meta), 476, 478, 494-95, 499, 502, 505-06 (Snapchat), 555-
7
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE THIRD-PARTY MISCONDUCT AND
ONLINE CHALLENGE ALLEGATIONS FROM IDENTIFIED SHORT-FORM COMPLAINTS
56, 609-11, 666, 669-70, 674, 677, 680 (TikTok), 774, 767, 785, 789, 793 (YouTube). The platforms’
design also attracts and facilitates predators to recruit and sexually exploit children for the production and
distribution of CSAM on Defendants’ platforms. MC {ff 137, 365-402, 494-513, 666-682, 774-802, 861.
Defendants’ argument that most social media users do not sexually assault children does not immunize
Defendants for their substantial role in causing these harms. See, e.g., MaryM. v. City of L.A. (1991) 54
Cal. 3d 202, 217-18 (liable even though assaults by police officers are “fortunately uncommon”). Given
Defendants’ knowledge of the harmful nature of the defective features, the third parties’ conduct was
reasonably foreseeable. See, e.g., Kesner, | Cal. 5th at 1146 (foreseeable that asbestos worker could bring
home asbestos fibers on clothes); Regents, 4 Cal. 5th at 631 (assault by classmate foreseeable given notice
10 of classmate’s violent tendencies); Bigbee, 34 Cal. 3d at 57-58 (placement of telephone booth at major
11 thoroughfare could foreseeably result in person being hit by a third-party driver).
12 Defendants argue that social media companies are somehow categorically immunized where third-
13 parties conduct is involved. This is inaccurate, and the cases cited by Defendants are inapposite.
14 Defendants rely on several cases that do not apply California law. See Twitter v. Taamneh (2023) 143 S.
15 Ct. 1206; Crosby v. Twitter (6th Cir. 2019) 921 F.3d 617; Fields v. Twitter (9th Cir. 2018) 881 F.3d 739
16 (noting the statutory language “by reason of” requires more than foreseeability). Furthermore, the
17 connection between the defendants’ actions and the plaintiffs’ harm in those cases was far more attenuated
18 than it is here. The plaintiff in Taamneh alleged that social media companies “aided and abetted ISIS by
19 knowingly allowing ISIS and its supporters to use their platforms and benefit from their ‘recommendation’
20 algorithms, enabling ISIS to connect with the broader public, fundraise, and radicalize new recruits.” 143
21 S. Ct. at 1217. But they alleged no facts demonstrating that the perpetrator viewed content uploaded by
22 ISIS or that ISIS was responsible for the shooting. /d. at 1226. So too in Crosby, 921 F.3d at 625-26 and
23 Fields, 881 F.3d at 750. Notably, the courts recognized that, under different facts, social media companies
24 could be held liable for “proximately caus[ing] a terrorist attack through their social media platforms.”
25 Crosby, 921 F.3d at 625; see also Taamneh, 143 S. Ct. at 1228. The connections here are far more direct:
26 Plaintiffs allege that they used specific apps, particular features were defective because they made it easy
27
28
8
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE THIRD-PARTY MISCONDUCT AND
ONLINE CHALLENGE ALLEGATIONS FROM IDENTIFIED SHORT-FORM COMPLAINTS
for adult users to harm kids, and adults did use those allegedly defective features to harm kids.®
B Section 230 Does Not Bar Plaintiffs’ Sex Abuse, Challenge and CSAM Claims
Section 230 provides no defense from claims holding platforms liable for their own actions—like
the claims at issue here. See, e.g., Lemmon v. Snap (9th Cir. 2021) 995 F.3d 1085, 1092-93. As this Court
has recognized, the inquiry is whether Defendants’ duty derives from their status or conduct as publisher.
Dem. Order at 57. Section 230 permits a negligence claim based upon Defendants’ “duty not to harm the
users of Defendants’ platforms through the design and/or operation of those platforms” Ts]o long as
providers are not punished for publishing third-party content... .” /d. at 43, 61. Ignoring the law of this
case, Defendants again argue that Section 230 should bar relief based on their own conduct as it pertains
10 to sex abuse, CSAM, and challenges. Defendants’ Section 230 defense should again be rejected because
11 Plaintiffs’ negligence claims seek to hold Defendants responsible for their own conduct in designing their
12 platforms rather than hold them responsible for any content’s improper character.
13 1 Section 230’s text and purposes do not support Defendants’ interpretation.
14 Defendants ignore the text of Section 230’s preemption provision, which demonstrates a
15 congressional intent to limit the scope of preemption. Preemption does not extend to a “State law that is
16 consistent with [Section 230(c)(1)]” but only to “State or local law[s] that is inconsistent with this section.”
17 47 U.S.C. § 230(e)(3). A state law is inconsistent with a federal law if the two laws are incompatible. See
18 Jones v. Rath Packing, 430 U.S. 519, 540 (1977) (“Since it would be possible to comply with the state
19 law without triggering federal enforcement action we conclude that the state requirement is not
20 inconsistent with federal law.””). Because Plaintiffs’ negligence-based claims are compatible with Section
21 230, this Court should not hold that Section 230 preempts relief for certain harms. For all of Plaintiffs”
22 claims, Defendants could have avoided liability and prevented Plaintiffs’ injuries without taking down
23
24
8Noble v. LA Dodgers (1985) 168 Cal. App. 3d 912, 918, is easily distinguished. In that case, the jury
25 found that the plaintiff instigated a fight, but that the defendant was 35% responsible for not having
adequate security to break up the fight. The Court of Appeal reversed because, at trial, the plaintiff could
26 not present any evidence that additional security measures would have prevented plaintiffs injuries.
Modisette is also distinguishable. In that case, the question was whether the manufacturer of a cell phone
27 “owes a duty to design it in such a manner that a user is incapable of using it while driving.” 30 Cal. App.
Sth at 152. But the Legislature had chosen to permit what the plaintiffs sought to prohibit. /d. at 150. There
28 is no such legislation here. Instead, the strong policy to protect children from known harms.
9
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE THIRD-PARTY MISCONDUCT AND
ONLINE CHALLENGE ALLEGATIONS FROM IDENTIFIED SHORT-FORM COMPLAINTS
any content. Accordingly, Plaintiffs do not treat Defendants as publishers of others’ content.’
It is also significant that, insofar as Defendants designed their platforms to cause compulsive and
“unsupervised or secret use” by minors, this Court has recognized that “Defendants are allegedly liable
for their own actions, not for the content of third-party postings.” Dem. Order at 59-61. This Court likewise
determined that “[h]olding Meta responsible for a failure to warn of the potentially harmful effects of such
design features likewise does not fall within the scope of Section 230 immunity.” /d. at 86. Under this
Court’s prior holdings, Plaintiffs can obtain relief for their harms (such as addiction, anxiety, etc.) that
stem directly from Defendants’ duty to not harm minor users through their design and operation of the
platforms. Defendants now attack specific harms (sex abuse, CSAM and dangerous challenges), but those
10 harms flow from Defendants’ conduct that led to compulsive use and that prevented parental oversight
11 and control. These harms occurred because 1) Defendants caused Plaintiffs’ addiction, and 2) Defendants
12 created an environment where parents remained in the dark to the activities of their children.
13 Further, Defendants—in arguing for an interpretation of Section 230 that would immunize their
14 conduct that causes harm to minors from sexual abuse and dangerous challenges—ignore the
15 congressional purposes in Section 230. In addition to its desire to protect internet providers from suits for
16 hosting content, Congress also intended to “maximize user control over what information is received,”
17 and “empower parents to restrict their children’s access to objectionable or inappropriate online material.”
18 47 U.S.C. § 230 (b)(2, 3). See Dem. Order at 61-62. Indeed, Section 230 was titled “Online Family
19 Empowerment,” and Section 230(c) falls under the subheading, “Protection for ‘Good Samaritan’
20 blocking and screening of offensive material.” Telecommunication Act of 1996, Pub. L. No. 104-104,
21 110 Stat 56. Defendants’ sweeping interpretation of Section 230 would turn these congressional purposes
22 on their heads by granting immunity to social media companies for conduct that facilitates sexual abuse
23 of minors, but Section 230 “was not meant to create a lawless no-man’s land on the Internet.” Fair Hous.
24
° Even if Section 230 were ambiguous (which is denied), “when the text of an express pre-emption clause
25 is susceptible of more than one plausible reading, courts ordinarily ‘accept the reading that disfavors pre-
emption.’” Altria v. Good, 555 U.S. 70, 77 (2008). For example, in Brown v. Mortensen, 51 Cal. 4th 1052,
26 1063-64 (2011), the California Supreme Court found the term “subject matter” ambiguous in the Fair
Credit Reporting Act’s express preemption provision as a court could either interpret the undefined word
27 “matter” narrowly to preempt fewer state law claims or more broadly to preempt more state law claims.
The court unanimously adopted the narrow interpretation because the presumption against preemption
28 “applies not only to the existence, but also to the extent, of federal preemption.” Jd. at 1064.
10
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE THIRD-PARTY MISCONDUCT AND
ONLINE CHALLENGE ALLEGATIONS FROM IDENTIFIED SHORT-FORM COMPLAINTS
Council of San Fernando Valley v. Roommates.com (9th Cir. 2008) 521 F.3d 1157, 1164 (en banc);
Hassell v. Bird (2018) 5 Cal. 5th 522, 559 (Kruger, J., concurring) (“[W]hen it comes to addressing new
questions about the scope of Section 230 immunity, we should proceed cautiously, lest we inadvertently
forbid an even broader swath of legal action than Congress could reasonably have intended.”).
2 This Court should rejected Defendants’ harms-based standard.
Although Defendants argue that harms from sex abuse and challenges relate to content, “[e]ven if
third-party content is a ‘but-for’ cause of the harm suffered by a plaintiff, the action is not barred by
Section 230 if the cause of action does not seek to hold the provider liable as a publisher.” Dem. Order at
19; see also id. at 63-64. Courts have rejected a but-for standard that would immunize internet service
10 providers anytime that content is a link in the causal chain. Hassell v. Bird, (2018) 5 Cal.5th 522, 542-43
11 (“not all legal duties owed by Internet intermediaries necessarily treat them as the publishers of third-party
12 content, even when thes
Preview
PANISH | SHEA | BOYLE | RAVIPUDI LLP BRIAN J. PANISH, State Bar No. 116060 bpanish@psbr.law Electronically FILED by Superior Court of California, RAHUL RAVIPUDI, State Bar No. 204519 County of Los An geles rravipudi@psbr.law 2/15/2024 6:45 PI JESSE CREED, State Bar No. 272595 David W, Slayton, jcreed@psbr.law Executive Officer/Clerk of Court, By D. Jackson Aubry, Deputy Clerk 11111 Santa Monica Boulevard, Suite 700 Los Angeles, CA 90025 Telephone: 310.477.1700 Facsimile: 310.477.1699 MORGAN & MORGAN EMILY C. JEFFCOTT (admitted pro hac vice) ejeffcott@forthepeople.com 633 West Fifth Street, Suite 2652 Los Angeles, CA 90071 Tel: (213) 787-8590 10 Fax: (213) 418-3983 11 BEASLEY ALLEN JOSEPH VANZANDT (admitted pro hac vice) 12 joseph.vanzandt@beasleyallen.com 234 Commerce Street 13 Montgomery, AL 36103 Tel: (334)269-2343 14 Co-Lead and Co-Liaison Counsel for Plaintiffs 15 16 SUPERIOR COURT OF THE STATE OF CALIFORNIA 17 FOR THE COUNTY OF LOS ANGELES 18 COORDINATION PROCEEDING JUDICIAL COUNCIL COORDINATION SPECIAL TITLE [RULE 3.400] PROCEEDING NO. 5255 19 SOCIAL MEDIA CASES For Filing Purposes: 22STCV21355 20 21 THIS DOCUMENT RELATES TO: Judge: Hon. Carolyn B. Kuhl Dept.: SSC-12 22 (Christina Arlington Smith, et al., v. TikTok Inc., et al., Case No. 22STCV21355) PLAINTIFFS’ OPPOSITION TO 23 DEFENDANTS’ MOTION TO STRIKE 24 (A.S. et al. v. Meta Platforms, Inc. et al., Case THIRD-PARTY MISCONDUCT AND No. 22STCV28202) ONLINE CHALLENGE ALLEGATIONS 25 FROM IDENTIFIED SHORT-FORM (Glenn-Mills v. Meta Platforms, Inc. et al., COMPLAINTS 26 Case No. 23SMCV03371) Date: March 20, 2024 27 Time: 1:45 p.m. 28 Dept.: SSC-12 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE THIRD-PARTY MISCONDUCT AND ONLINE CHALLENGE ALLEGATIONS FROM IDENTIFIED SHORT-FORM COMPLAINTS (JS. et al. v. Meta Platforms, Inc. et al., Case No. CV 2022-1472) (K.K. et al. v. Meta Platforms, Inc. et al., Case No. 23SMCV03371) (K.L. et al. v. Meta Platforms, Inc. et al., Case No. CIV SB 2218921) (N.S. et al. v. Snap Inc., Case No. 22CV019089) (P.F. et al. v. Meta Platforms, Inc. et al., Case No. 23SMCV03371) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE THIRD-PARTY MISCONDUCT AND ONLINE CHALLENGE ALLEGATIONS FROM IDENTIFIED SHORT-FORM COMPLAINTS TABLE OF CONTENTS Page INTRODUCTION IL FACTUAL ALLEGATIONS Til. DEFENDANTS DID NOT TIMELY MOVE TO STRIKE THE MASTER COMPLAINT ALLEGATIONS IV. DEFENDANTS’ MOTION TO STRIKE FAILS ON THE MERITS A Defendants have a duty to not cause harms—even harms from third parties 1 Defendants created a risk of harm, thereby establishing a duty. 00.0.0... cece 4 2 Defendants have a special relationship with minor USETS. ..........ccceeeeeseeeteeeteeeeeee 5 10 3 Plaintiffs adequately pled proximate Causation. .........cceces ees eeeseeeeeeeseeeeteeseeeseeees 7 11 Section 230 Does Not Bar Plaintiffs’ Sex Abuse, Challenge and CSAM Claims 12 1 Section 230’s text and purposes do not support Defendants’ interpretation. .......... 9 13 2 This Court should rejected Defendants’ harms-based standard. 11 14 3 Plaintiffs do not treat Defendants as publishers for sex abuse or CSAM. 12 15 4 Plaintiffs do not treat TikTok as a publisher of others’ content for 16 challenges. 15 17 Cc The First Amendment Does Not Prevent Relief from Challenges 17 18 V. CONCLUSION.. 17 19 20 21 22 23 24 25 26 27 28 1 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE THIRD-PARTY MISCONDUCT AND ONLINE CHALLENGE ALLEGATIONS FROM IDENTIFIED SHORT-FORM COMPLAINTS TABLE OF AUTHORITIES Page CASES A.M. v. Omegle, 614 F. Supp. 3d 814 (D. Or. 2022) 13, 14 Altria v. Good, 555 U.S. 70 (2008) 10 Barnes v. Yahoo, 570 F.3d 1096 (9th Cir. 2012) 11, 12,14 Bigbee v. Pac. Tel. & Tel. Co., 34 Cal.3d 57 (1983) 10 Bride v. Snap, 11 2023 WL 2016927 (C.D. Cal. Jan. 10, 2023) 12 12 Brown v. Mortensen, 51 Cal. 4th 1052 (2011) 10 13 Brown v. USA Taekwondo, 14 11 Cal. Sth 204 (2021) 3,4 15 Cabral v. Ralph’s Grocery, 51 Cal.4th 764 (2011) 16 Carafano v. Metrosplash.com, 17 339 F.3d 1119 (9th Cir. 2003) 12 18 Chaney v. Superior Court, 39 Cal. App. 4th 152 (1995) 19 CLD Constr. v. City of San Ramon, 20 120 Cal. App. 4th 1141 (2004) 21 Crosby v. Twitter, 921 F.3d 617 (6th Cir. 2019) 22 Delgado v. Trax Bar & Grill, 23 36 Cal. 4th 224 (2005) 24 Demetriades v. Yelp, 228 Cal. App. 4th 294 (2014) 11, 12, 14, 15 25 Dix v. Live Nation Entertainment, 26 56 Cal. App. 5th 590 (2020) 27 Doe II v. MySpace, 175 Cal. App. 4th 561 (2009) . 13 28 ii PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE THIRD-PARTY MISCONDUCT AND ONLINE CHALLENGE ALLEGATIONS FROM IDENTIFIED SHORT-FORM COMPLAINTS Doe v. Facebook, 142 S. Ct. 1087 (2022) 13 Doe v. Grindr, 2023 WL 9066310 (C.D. Cal. Dec. 28, 2023) 14 Doe v. Internet Brands, 824 F.3d 846 (9th Cir. 2016) 14, 15 Doe v. MySpace, 528 F.3d 413 (5th Cir. 2008) 13 Doe v. Reddit, 2021 WL 5860904 (C.D. Cal. Oct. 7, 2021).. 15 Doe v. Snap, 88 F.4th 1069 (Sth Cir. 2023) 13 10 Dyroffv. Ultimate Software, 934 F.3d 1093 (9th Cir. 2019) 5, 12, 15 11 Erie Ins. v. Amazon.com, 12 925 F.3d 135 (4th Cir. 2019) 11 13 Fair Hous. Council of San Fernando Valley v. Roommates.com, 521 F.3d 1157 (9th Cir. 2008) 11,12 14 Ferraro v. Camarlinghi, 15 161 Cal. App. 4th 509 (2008) 16 Fields v. Twitter, 881 F.3d 739 (9th Cir. 2018) 17 Force v. Facebook, 18 934 F.3d 53 (2d Cir. 2019).. 12 19 Hacala v. Bird Rides, 90 Cal. App. 5th 292 (2023) 4,7 20 Hassell v. Bird, 21 5 Cal. 5th 522 (2018) 11,14 22 Henderson v. Source for Pub. Data, 53 F.4th 110 (4th Cir. 2022) 11 23 Herrick v. Grindr, 24 765 F. App’x 586 (2d Cir. 2019) 15 25 HomeAway.com v. Santa Monica, 918 F.3d 676 (9th Cir. 2019) 11,14 26 In re Facebook, 27 625 S.W.3d 80 (Tex. 2021) 13, 14 28 iil PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE THIRD-PARTY MISCONDUCT AND ONLINE CHALLENGE ALLEGATIONS FROM IDENTIFIED SHORT-FORM COMPLAINTS In re Soc. Media, 2023 WL 7524912 (N.D. Cal. Nov. 14, 2023) 6, 14 Isaacs v. Huntington Mem. Hosp., 38 Cal. 3d 112 (1985) Jane Doe No. 1 v. Uber, 79 Cal. App. 5th 410 (2022) Jones v. Rath Packing, 430 U.S. 519 (1977) Kesner v. Superior Court of Alameda Cnty 1 Cal. Sth 1146 (2016) Kimzey v. Yelp!, 836 F.3d 1263 (9th Cir. 2016) 12, 15 10 Kuciemba v. Victory Woodworks, 14 Cal. Sth 993 (2023) 3,4 11 L.W. v. Snap, 12 2023 WL 3830365 (S.D. Cal. June 5, 2023). 12 13 Lee v. Amazon.com, 76 Cal. App. 5th 200 (2022) 11, 12, 14, 15 14 Lemmon v. Snap, 15 995 F.3d 1085 (9th Cir. 2021) 9, 12, 15, 16 16 Malwarebytes v. Enigma, 141 S. Ct. 13 (2020). 14 17 Margaret W. v. Kelley R., 18 139 Cal. App. 4th 141 (2006) 19 Marshall's Locksmith v. Google, 925 F.3d 1263 (D.C. Cir. 2019) 15 20 MaryM. v. City of L.A., 21 54 Cal. 3d 202 (1991) 22 Maynard v. Snapchat, 870 S.E.2d 739 (Ga. 2022). 12 23 Modisette v. Apple, 24 30 Cal. App. Sth 136 (2018)... 7,9 25 Noble v. LA Dodgers, 168 Cal. App. 3d 912 (1985) 26 Pamela L. v. Farmer, 27 112 Cal. App. 3d 211 (1980) 28 lv PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE THIRD-PARTY MISCONDUCT AND ONLINE CHALLENGE ALLEGATIONS FROM IDENTIFIED SHORT-FORM COMPLAINTS People v. Bollaert, 248 Cal.App.4th 699 (2016) 16 PH II y. Superior Ct., 33 Cal. App. 4th 1680 (1995) 2,o>3, 16 Prager U. v Google, 85 Cal. App. 5th 1022 (2022) 12 Regents of U. of Cal. v. Super. Ct. 4 Cal. 5th 607 (2018) 5,8 Romero v. Superior Court, 89 Cal. App. 4th 1068 (2001) San Jose Sharks v. Superior Ct. of Santa Clara Cnt 316 Cal. Rptr. 3d 393 (2023) 10 San Jose Sharks v. Superior Ct. of Santa Clara Cnty. 98 Cal. App. Sth 158 (2023) 11 State Dep't of State Hosps. v. Superior Ct., 12 61 Cal. 4th 339 (2015) 13 Tarasoff v. Regents of U. of Cal., 17 Cal. 3d 425 (1976) 14 Twitter v. Taamneh, 15 143 S. Ct. 1206 (2023) 16 Twitter, Inc. v. Taamneh, 598 U.S. 471 (2023). 17 Wallace v. Der-Ohanian, 18 199 Cal. App. 2d 141 (1962) 19 Weirum v. RKO General, Inc., 15 Cal. 3d 41 (1975) 20 Young v. Facebook, 21 2010 WL 4269304 (N.D. Cal. Oct. 25, 2010) 22 Ziencik v. Snap, 2023 WL 2638314 (C.D. Cal. Feb. 3, 2023), 23 24 STATUTES 25 47 U.S.C. § 230 passim 26 47 U.S.C. § 230(b)(2) 10 27 47 U.S.C. § 230(b)(3) ... 10 28 Vv PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE THIRD-PARTY MISCONDUCT AND ONLINE CHALLENGE ALLEGATIONS FROM IDENTIFIED SHORT-FORM COMPLAINTS 47 U.S.C. § 230(c)(1) 47 U.S.C. § 230(e)(3). 47 U.S.C. § 230(£)(3) 16 C.R.C. Rule 3.1322(b) CAL. Civ. PRoc. CODE § 435(B)(1) Cal. Civ. Proc. Code § 435(b)(3) CAL. Civ. PROC. CODE § 452 Cal. Proc. 6th Plead § 1017(2) (5 Witkin 2023) Clv. PRETRIAL CH. 4-J § 2 (O’CONNOR’S CALIFORNIA PRACTICE 2023). 10 Civ. Proc. Before Trial Ch. 7(1)-B § 7:162 (The Rutter Group Cal. Practice Guide) 11 Rest. 2d Torts § 431 (1965) 12 Rest. 2d Torts § 433 (1965) 13 Rest. 3d Torts § 19 (2010) 14 15 MISCELLANEOUS 16 CACTI Jury Instruction No. 412 17 18 19 20 21 22 23 24 25 26 27 28 vi PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE THIRD-PARTY MISCONDUCT AND ONLINE CHALLENGE ALLEGATIONS FROM IDENTIFIED SHORT-FORM COMPLAINTS 1 I INTRODUCTION Defendants’ motion to strike is untimely as to the Master Complaint allegations and fails on the merits. Defendants seek to strike many allegations in the Master Complaint, but they did not timely file a motion to strike alongside their original demurrer and have already answered the Master Complaint. Accordingly, this Court should deny Defendants’ motion to strike allegations in the Master Complaint. To the extent this Court reaches the merits of Defendants’ motion to strike, this Court should again reject their Section 230 and First Amendment arguments. The at-issue Short Form Complaints (SFC) allege several harms, such as compulsive use/addiction, depression, anxiety, suicidality, self-harm, as well as harms resulting from sexual abuse (for six of the identified Short Form Plaintiffs) and dangerous 10 challenges (for one). As this Court has previously held, Plaintiffs properly allege that Defendants’ conduct 11 created a risk of harm to—and did harm—Plaintiffs. For this and other reasons, the Court should reject 12 Defendants’ argument that they lack any duty to not increase the risk of harm from third party actors. 13 Section 230 does not bar relief for the distinct harms from sexual abuse and dangerous challenges. 14 Defendants repackage the repudiated but-for causation standard as a harms-based standard, but controlling 15 precedent and law of this case rejects a but-for standard, however worded, and Plaintiffs have satisfied the 16 pertinent duty-based inquiry. The First Amendment also does not bar any relief for these harms because, 17 as this Court has already recognized, Plaintiffs do not seek to hold Defendants liable for any content itself, 18 but rather Defendants’ negligent design oftheir platforms. 19 Il. FACTUAL ALLEGATIONS 20 Defendants’ platforms use several methods to attract and addict children. MC §| 270-275, 278, 21 440-451, 592, 606, 726, 736. For example, challenges to “foster[] competition and the social rewards of 22 posting a challenge video,” which “incentivizes users to engage with the product continuously.” MC § 23 608. For its part, TikTok knows that its challenges are particularly harmful to adolescents and children. 24 MC {{ 618-626; see also §| 767 (YouTube). Defendants’ platforms have also facilitated child sexual 25 exploitation on a shocking scale. MC 4] 365-95 (Meta), 472-73, 494-513 (Snap), 666-82 (TikTok), 774- 26 802 (YouTube). The platforms do so through ineffective age verification that allow predators to 27 masquerade as children; recommendations that function as a digital matchmaking service for pedophiles 28 and kids; public profiles for children; allowing predators to discover and groom children; and providing 1 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE THIRD-PARTY MISCONDUCT AND ONLINE CHALLENGE ALLEGATIONS FROM IDENTIFIED SHORT-FORM COMPLAINTS mechanisms for cash payments or gifts from adults to children—all without parental controls and parental notification. MC 4¥| 366, 372-73 (Meta), 438, 447, 481, 499 (Snapchat), 503, 550, 555-56, 670, 677 (TikTok), 716, 736 (YouTube). Further, Snapchat provides pedophiles with additional information to find and groom children. MC ff 438, 478, 501, 511. Applicable here, the SFCs raise claims for, inter alia, negligence and non-product negligent failure to warn with injuries such as addiction/compulsive use, depression, anxiety, self-harm, suicidality, and attempted suicide.! A.S., K.L., N.S., Glenn-Mills, P.F., and K.K. also allege harms from exploitation or sexual abuse, and J.S. alleges harm from viral challenges.” lll. DEFENDANTS DID NOT TIMELY MOVE TO STRIKE THE MASTER COMPLAINT ALLEGATIONS Defendants’ motion targets many allegations in the Master Complaint, MTS {J 8-39, but this 10 ignores that Defendants failed to timely file a motion to strike alongside their original demurrer and have 11 already answered the Master Complaint. CAL. Clv. PROC. CODE § 435(b)(1, 3); C.R.C., Rule 3.1322(b); 5 12 Witkin, CAL. Proc. 6th Plead § 1017(2) (2023); Rutter, CAL. PRAC. GUIDE CIv. PRO. BEFORE TRIAL Ch. 13 7(D)-B §7:162. Defendants cannot now file a motion to strike allegations in the Master Complaint. To hold 14 otherwise would mean that Defendants can file new motions to strike the Master Complaint’s case wide 15 allegations for each and every plaintiff in this litigation. 16 Iv. DEFENDANTS’ MOTION TO STRIKE FAILS ON THE MERITS 17 To the extent the Court reaches the merits of Defendants’ motion to strike, it should nonetheless 18 be denied. “[W]hen a substantive defect is clear from the face of a complaint, such as a violation of the 19 applicable statute of limitations or a purported claim of right which is legally invalid, a defendant may 20 attack that portion ofthe cause of action by filing a motion to strike.” PH IJ v. Superior Ct. (1995) 33 Cal. 21 App. 4th 1680, 1682-83. However, the Court of Appeal has cautioned that “such use of the motion to 22 strike should be cautious and sparing. We have no intention of creating a procedural ‘line item veto’ for 23 24 25 ! Am. Short Form Compl. (SFC), 4.S. v. Meta, 22STCV28202 (Jan. 5, 2024) at 4, 6, 8; Am. SFC, K.L. v. 26 Meta, CIV SB 2218921 (Jan. 5, 2024) at 4, 6, 8; Am. SFC, Glenn Mills v. Meta, 23SMCV03371 (Jan. 5, 2024) at 4, 6, 8; Am. SFC, N.S. v. Snap, 22CV019089 (Jan. 5, 2024) at 4, 6, 8; Am. SFC, P.F. v. Meta, 27 23SMCV03371 (Jan. 5, 2024) at 4, 6, 8; 2d Am. SFC, K.K. v. Meta, 23SMCV03371 (Jan. 17, 2024) at 4, 6, 8; 2d Am. SFC, JS. v. Meta, CV2022-1472 (Jan. 9, 2024) at 4, 6, 8. 28 2 See e.g., A.S. SFC at 5; see also J.S. SFC at 5. 2 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE THIRD-PARTY MISCONDUCT AND ONLINE CHALLENGE ALLEGATIONS FROM IDENTIFIED SHORT-FORM COMPLAINTS the civil defendant.” Jd. at 1683; but see also Ferraro v. Camarlinghi (2008) 161 Cal. App. 4th 509, 528 (holding that motion to strike is improper for substantive defects) (“While this language might be broadly construed to reach any deficiency in a pleading, including substantive ones, that is not its purpose or effect. Rather it authorizes the striking of a pleading due to improprieties in its form or in the procedures pursuant to which it was filed. This provision is commonly invoked to challenge pleadings filed in violation of a deadline, court order, or requirement of prior leave of court.”) (emphasis in original); O’CONNOR’S CAL. PRACTICE, Civil Pretrial Ch. 4-J § 2 (2023 ed.) (noting that Courts of Appeal “disagree” as to whether a motion to strike is permissible to challenge a substantive defect in a complaint). As with a demurrer, the Court should “read allegations of a pleading subject to a motion to strike 10 as a whole, all their parts in their context, and assume their truth.” San Jose Sharks v. Superior Ct. of Santa 11 Clara Cnty. (2023) 98 Cal. App. Sth 158, 316 Cal. Rptr. 3d 393, 399. Further, “[iJn the construction of a 12 pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view 13 to substantial justice between the parties.” CAL. CIv. PROC. CODE § 452. In addition, “[w]here the defect 14 raised by a motion to strike or by demurrer is reasonably capable of cure, leave to amend is routinely and 15 liberally granted to give the plaintiff a chance to cure the defect in question.” CLD Constr. v. City of San 16 Ramon (2004) 120 Cal. App. 4th 1141 (citation omitted). 17 A. Defendants have a duty to not cause harms—even harms from third parties 18 Each Plaintiffat issue brings negligence claims with addiction harms and several harms stemming 19 from and relating to their social media addiction—including sexual exploitation and injury from dangerous 20 challenges. Contrary to Defendants’ argument, this Court should not strike Plaintiffs’ damages claims that 21 stem from sexual exploitation, CSAM, and dangerous challenges. California recognizes claims related to 22 harm caused in whole or in part by third parties (1) where the defendant also was a cause of the harm or 23 (2) where the defendant has a special relationship with either the victim or the third party. MTS at 23-24 24 (citing Brown v. USA Taekwondo (2021) 11 Cal. Sth 204, 216); Kuciemba v. Victory Woodworks (2023) 25 14 Cal. 5th 993, 1016-18 (where defendant’s conduct caused injury—even where causation is indirect— 26 California law has “never suggested that a special relationship was a required prerequisite for finding a 27 duty of care.”). Because Plaintiffs’ claims can meet either prong, Defendants’ Motion should be denied. 28 3 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE THIRD-PARTY MISCONDUCT AND ONLINE CHALLENGE ALLEGATIONS FROM IDENTIFIED SHORT-FORM COMPLAINTS 1 Defendants created a risk of harm, thereby establishing a duty. “Duty, under the common law, is essentially an expression of policy that 666 the plaintiff's interests are entitled to legal protection against the defendant’s conduct.‘ Kuciemba, 14 Cal.5th at 1016. The “general rule” of duty in California is established by Civil Code section 1714. Cabral v. Ralph’s Grocery (2011) 51 Cal.4th 764, 771. Defendants contend Plaintiffs’ injuries were caused by third party content, and they cannot be held liable absent a special relationship. This depiction “is not consistent with a fair and reasonable reading of the complaint’s allegations.” Hacala v. Bird Rides (2023) 90 Cal. App. 5th 292, 311. The complaint does not allege third-party conduct was the sole cause of harm. For instance, Plaintiffs allege that Defendants’ platforms “promote and dramatically exacerbate sexual exploitation, the spread of 10 CSAM, sextortion, and other socially maladaptive behavior that harms children.” See, e.g., MC {J 365- 11 402 (Meta), 494-513 (Snapchat), 666-682 (TikTok), 774-802 (YouTube). Indeed, Plaintiffs’ claims 12 involving third party conduct involve Defendants’ creation of risks. Plaintiffs have alleged that Defendants 13 have created a risk of harm through their design of addictive platforms in a manner that subjects them to 14 harms from CSAM, sex exploitation, and dangerous challenges, despite knowledge of the risks. MC ff 15 52, 78, 80-81, 140 (all Defendants), 221, 234, 236-37, 268-69, 332 (Meta), 410-412, 439-40, 446, 454, 16 465 (Snapchat), 529, 535, 557, 601 (TikTok), 713, 723-25, 727, 740 (YouTube), 830, 833, 929. 17 Even if third-party conduct were the “immediate cause” of the harm to Plaintiffs, a special 18 relationship is not required. Kuciemba, 15 Cal. Sth at 1017 (noting “exclusive focus on causation in this 19 context is inconsistent with [California] case law”). The no-duty-to-protect rule does not apply when a 20 claim is based on “an affirmative act of defendant which created an undue risk of harm.” Weirum, 15 21 Cal.3d at 41. The proper inquiry is “whether the defendant’s ‘entire conduct created a risk of harm’ to the 22 plaintiff,” Kuciemba, 15 Cal. Sth at 1017 (quoting Brown, 11 Cal.5th at n.6), or “increased the risk of harm 23 to the plaintiff.” Brown, 11 Cal.Sth at 215 n. 7; see also Isaacs v. Huntington Mem. Hosp. (1985) 38 Cal. 24 3d 112, 131. Here, Defendants’ conduct, including their design choices, “contributed to the risk of harm 25 that resulted in plaintiffs’ injuries.” Hacala, 90 Cal.App.Sth 311; see, e.g., MC {J 825-849, 852-867, 870- 26 891, 894-910, 913-937, 940-954.? Defendants likewise fail to analyze the Rowland factors, which could 27 3 Defendants cite inapposite cases where the sole basis for liability was failure to control third parties. See 28 4 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE THIRD-PARTY MISCONDUCT AND ONLINE CHALLENGE ALLEGATIONS FROM IDENTIFIED SHORT-FORM COMPLAINTS permit an exception to an otherwise owed duty.* As such, Defendants cannot use third-party actions as a shield for their own negligent conduct. 2. Defendants have a special relationship with minor users. Because this Court has determined, in considering Plaintiffs’ addiction claims, that Plaintiffs have properly alleged that “Defendants’ conduct directly harmed [them],” Dem. Order at 49:22-23, the Court need not reach the issue of whether there was a special relationship between Defendants and Plaintiffs.> But even if a special relationship is required obtain relief for harms from CSAM, sexual abuse, and challenges (which is denied), such a relationship exists. California courts have found special relationships in many contexts. In Tarasoffv. Regents of U. of Cal. (1976) 17 Cal. 3d 425, for example, the court held 10 that a psychotherapist, whose patient confessed a plan to kill a specific victim, owed a duty due to a special 11 relationship with the patient. Jd. at 439. The court acknowledged that there may be cases that require 12 “expanding the list of special relationships which will justify departure from [the general rule against 13 liability for third party conduct].” Jd. at n.5; see also Regents of U. of Cal. v. Super. Ct. (2018) 4 Cal. Sth 14 607, 634 (expanding list of “special relationships” by recognizing that colleges have special relationship 15 duty to protect students); Dix v. Live Nation Entertainment (2020) 56 Cal. App. Sth 590, 600 (where 16 plaintiff died from taking drugs at concert, defendant had special relationship with 65,000 invitees). 17 The Regents court gave lower courts guidance on identifying new categories of “special 18 relationships.” /d. at 620-621. The court held that “special relationships” tend to have identifying features, 19 including: (1) “an aspect of dependency in which one party relies to some degree on the other for 20 Dyroffv. Ultimate Software (9th Cir. 2019) 934 F.3d 1093; Jane Doe No. I v. Uber (2022) 79 Cal. App. 21 Sth 410; Young v. Facebook (N.D. Cal. Oct. 25, 2010) 2010 WL 4269304; Ziencik v. Snap (C.D. Cal. Feb. 3, 2023) 2023 WL 2638314. Twitter v. Taamneh, 598 U.S. 471, 500, is similarly unpersuasive as the case 22 involved the degree of culpability under the Justice Against Sponsors of Terrorism Act (JASTA), with the 23 Supreme Court noting “there may be situations where some such duty [to remove content from social media website] exists, [but] we need not resolve the issue today.” Jd. at 501. 24 4 Plaintiffs incorporate their analysis of the Rowland factors in Section IV.D of Plaintiffs’ Dem. Opp., filed August 11, 2023. 25 5 The conduct of Defendants that increases the risks of these harms stem from the features that hold the attention of users to the point of addiction. See MC § 138 (“[T]he longer adolescent users remain engaged 26 with its products, the higher the risk that adult predators will target them.”). Additionally, the longer 27 children engage with Defendants’ platforms, the more likely they are to be harmed by dangerous “challenges” that to go viral. See MC 4 533, 608-626, 684, 767-769 (as a result of Defendant’s conduct, 28 “young people are confronted with more and more extreme videos, often resulting in significant harm.”). 5 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE THIRD-PARTY MISCONDUCT AND ONLINE CHALLENGE ALLEGATIONS FROM IDENTIFIED SHORT-FORM COMPLAINTS protection,” (2) where one party is “particularly vulnerable” and relies on another who has “superior control over the means of protection,” and (3) the relationship “especially benefit[s] the party charged with the duty of care.” /d. (quotations omitted). All features are present here. Child users of social media depend entirely on the platform operators to protect them from the addictive nature of the platform, as well as sexual exploitation and dangerous challenges. Children are particularly vulnerable, and the relationship greatly benefits Defendants, who make billions in advertising revenue from children’s use of their platforms.® The Regents court further held that the “fact-dependent” special relationship analysis must be undertaken by lower courts. Jd. at n.4. See also Delgado v. Trax Bar & Grill (2005) 36 Cal. 4th 224, 245 (courts should be more willing to find “special relationship” where duty can be satisfied “by 10 undertaking reasonable, relatively simple, minimally burdensome measures”); MC 4 838 (listing cost- 11 effective, reasonably feasible means Defendants could have used to prevent or mitigate harm). 12 Further, “[s]ociety’s greatest responsibility ... is our common goal of safeguarding our children[.]” 13 Margaret W. v. Kelley R. (2006) 139 Cal. App. 4th 141, 152 (internal citations omitted). California law 14 recognizes that “an adult must anticipate the ordinary behavior of children” and “be more careful when 15 dealing with children than with adults.” CACI Jury Instruction No. 412. Thus, “youthful persons generally 16 are entitled to care proportioned to their inability to foresee and avoid the perils that they may encounter.” 17 Wallace v. Der-Ohanian (1962) 199 Cal. App. 2d 141, 145 (internal citations omitted); see Margaret W., 18 139 Cal.App.4th at 152 (“a host parent assumes a special relationship with children invited into her 19 home.”).’ Here, Defendants have a special relationship with child users, who were invitees to their 20 platforms. The MDL court recognized that the “duty is informed by the context at issue, namely that 21 plaintiffs are minor children.” Jn re Soc. Media (N.D. Cal. Nov. 14, 2023) 2023 WL 7524912, at *34-*35. 22 Defendants specifically designed features that appeal to minors and encourage their use of the product. 23 MC ff 52, 80, 226, 235-37, 239-41, 245, 261, 269-72, 276, 279-83, 293, 316-22, 322 (Meta), 429, 431- 24 435, 439-440, 446, 450, 452, 472, 475, 478, 481, 484 (Snapchat) 533, 535, 537-540, 542-43, 552, 576, 25 26 6 Plaintiffs incorporate their special relationship analysis in Section IV.D.2 of Plaintiffs’ Dem. Opp. 27 7 See Pamela L., 112 Cal. App. 3d at 211 (adult who invites minor into home assumes special relationship regardless of whether invitee or licensee); Chaney v. Superior Court (1995) 39 Cal. App. 4th 152, 157 28 (noting child’s dependence on adult); Romero v. Superior Court (2001) 89 Cal. App. 4th 1068, 1072. 6 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE THIRD-PARTY MISCONDUCT AND ONLINE CHALLENGE ALLEGATIONS FROM IDENTIFIED SHORT-FORM COMPLAINTS 585, 605, 612, 627, 641 (TikTok), 701, 709-711, 713-14, 723-24, 727, 732, 754, 757, 770-73 (YouTube). Having invited minors to use their platforms to earn advertising revenue and designed their platforms to enhance engagement, Defendants assumed a duty to not only to protect against known risks but to exercise reasonable care to discover and warn of unknown hazards. See MC {f 248, 343, 816, 843, 876-878, 882- 885, 900-903, 914-915, 927-928, 946-948, 959-960, 981-982, 995-996 (alleging duty due to minor status). 3. Plaintiffs adequately pled proximate causation. Proximate causation is a jury question unless “the facts are such that the only reasonable conclusion is an absence of causation, the question is one of law, not of fact.” State Dep’t of State Hosps. v. Superior Ct. (2015) 61 Cal. 4th 339, 353 (emphasis added); see also Modisette v. Apple (2018) 30 Cal. 10 App. 5th 136, 152 (quoting State Hosps. standard). As set forth below, the Master Complaint sufficiently 11 alleges that Defendants’ conduct was a substantial factor in causing their harm. 12 Nevertheless, Defendants seek to absolve social media companies for liability in cases involving 13 third-party wrongful conduct, such as the cases in which adults used Defendants’ platforms to exploit 14 children sexually. But “[t]he conduct of a defendant can lack reasonable care insofar as it foreseeably 15 combines with or permits the improper conduct of ... a third party.” Rest. 3d Torts: Phys. & Emot. Harm 16 § 19 (2010). Whether third parties a/so contributed to (some) Plaintiffs’ harms is thus a red herring. Even 17 in such cases, Plaintiffs need only allege foreseeability and that Defendants’ conduct was a substantial 18 factor in bringing about the harm. Hacala, 90 Cal. App. 5th at 311; see also Rest. 2d Torts §§ 431, 433 19 (1965) (explaining that negligent conduct is legal cause of harm if a substantial factor). Plaintiffs do not 20 need to show that Defendants’ wrongful conduct was the sole cause of the alleged injuries. Jd. 21 Plaintiffs’ Master Complaint meets this bar, alleging in detail how defective platform features lead 22 to particular injuries for claims in which a third party a/so contributes to Plaintiffs’ harm. For instance, 23 Defendants’ platforms have wholly inadequate parental control features with easy work-arounds for 24 children to avoid parental oversight. See, e.g., MC {| 259-63, 401-02 (Meta), 475, 468-69, 492-93 25 (Snapchat), 551-55, 576 (TikTok), 714-18 (YouTube). And most Defendants made minors’ profiles public 26 by default until recently, which supplied sexual predators with background information (e.g., list of 27 friends, activities, interests, and locations), making it easier for them to groom and abuse children. Jd. §§] 28 365, 371-74, 381, 385, 387-88, 394, 398-99 (Meta), 476, 478, 494-95, 499, 502, 505-06 (Snapchat), 555- 7 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE THIRD-PARTY MISCONDUCT AND ONLINE CHALLENGE ALLEGATIONS FROM IDENTIFIED SHORT-FORM COMPLAINTS 56, 609-11, 666, 669-70, 674, 677, 680 (TikTok), 774, 767, 785, 789, 793 (YouTube). The platforms’ design also attracts and facilitates predators to recruit and sexually exploit children for the production and distribution of CSAM on Defendants’ platforms. MC {ff 137, 365-402, 494-513, 666-682, 774-802, 861. Defendants’ argument that most social media users do not sexually assault children does not immunize Defendants for their substantial role in causing these harms. See, e.g., MaryM. v. City of L.A. (1991) 54 Cal. 3d 202, 217-18 (liable even though assaults by police officers are “fortunately uncommon”). Given Defendants’ knowledge of the harmful nature of the defective features, the third parties’ conduct was reasonably foreseeable. See, e.g., Kesner, | Cal. 5th at 1146 (foreseeable that asbestos worker could bring home asbestos fibers on clothes); Regents, 4 Cal. 5th at 631 (assault by classmate foreseeable given notice 10 of classmate’s violent tendencies); Bigbee, 34 Cal. 3d at 57-58 (placement of telephone booth at major 11 thoroughfare could foreseeably result in person being hit by a third-party driver). 12 Defendants argue that social media companies are somehow categorically immunized where third- 13 parties conduct is involved. This is inaccurate, and the cases cited by Defendants are inapposite. 14 Defendants rely on several cases that do not apply California law. See Twitter v. Taamneh (2023) 143 S. 15 Ct. 1206; Crosby v. Twitter (6th Cir. 2019) 921 F.3d 617; Fields v. Twitter (9th Cir. 2018) 881 F.3d 739 16 (noting the statutory language “by reason of” requires more than foreseeability). Furthermore, the 17 connection between the defendants’ actions and the plaintiffs’ harm in those cases was far more attenuated 18 than it is here. The plaintiff in Taamneh alleged that social media companies “aided and abetted ISIS by 19 knowingly allowing ISIS and its supporters to use their platforms and benefit from their ‘recommendation’ 20 algorithms, enabling ISIS to connect with the broader public, fundraise, and radicalize new recruits.” 143 21 S. Ct. at 1217. But they alleged no facts demonstrating that the perpetrator viewed content uploaded by 22 ISIS or that ISIS was responsible for the shooting. /d. at 1226. So too in Crosby, 921 F.3d at 625-26 and 23 Fields, 881 F.3d at 750. Notably, the courts recognized that, under different facts, social media companies 24 could be held liable for “proximately caus[ing] a terrorist attack through their social media platforms.” 25 Crosby, 921 F.3d at 625; see also Taamneh, 143 S. Ct. at 1228. The connections here are far more direct: 26 Plaintiffs allege that they used specific apps, particular features were defective because they made it easy 27 28 8 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE THIRD-PARTY MISCONDUCT AND ONLINE CHALLENGE ALLEGATIONS FROM IDENTIFIED SHORT-FORM COMPLAINTS for adult users to harm kids, and adults did use those allegedly defective features to harm kids.® B Section 230 Does Not Bar Plaintiffs’ Sex Abuse, Challenge and CSAM Claims Section 230 provides no defense from claims holding platforms liable for their own actions—like the claims at issue here. See, e.g., Lemmon v. Snap (9th Cir. 2021) 995 F.3d 1085, 1092-93. As this Court has recognized, the inquiry is whether Defendants’ duty derives from their status or conduct as publisher. Dem. Order at 57. Section 230 permits a negligence claim based upon Defendants’ “duty not to harm the users of Defendants’ platforms through the design and/or operation of those platforms” Ts]o long as providers are not punished for publishing third-party content... .” /d. at 43, 61. Ignoring the law of this case, Defendants again argue that Section 230 should bar relief based on their own conduct as it pertains 10 to sex abuse, CSAM, and challenges. Defendants’ Section 230 defense should again be rejected because 11 Plaintiffs’ negligence claims seek to hold Defendants responsible for their own conduct in designing their 12 platforms rather than hold them responsible for any content’s improper character. 13 1 Section 230’s text and purposes do not support Defendants’ interpretation. 14 Defendants ignore the text of Section 230’s preemption provision, which demonstrates a 15 congressional intent to limit the scope of preemption. Preemption does not extend to a “State law that is 16 consistent with [Section 230(c)(1)]” but only to “State or local law[s] that is inconsistent with this section.” 17 47 U.S.C. § 230(e)(3). A state law is inconsistent with a federal law if the two laws are incompatible. See 18 Jones v. Rath Packing, 430 U.S. 519, 540 (1977) (“Since it would be possible to comply with the state 19 law without triggering federal enforcement action we conclude that the state requirement is not 20 inconsistent with federal law.””). Because Plaintiffs’ negligence-based claims are compatible with Section 21 230, this Court should not hold that Section 230 preempts relief for certain harms. For all of Plaintiffs” 22 claims, Defendants could have avoided liability and prevented Plaintiffs’ injuries without taking down 23 24 8Noble v. LA Dodgers (1985) 168 Cal. App. 3d 912, 918, is easily distinguished. In that case, the jury 25 found that the plaintiff instigated a fight, but that the defendant was 35% responsible for not having adequate security to break up the fight. The Court of Appeal reversed because, at trial, the plaintiff could 26 not present any evidence that additional security measures would have prevented plaintiffs injuries. Modisette is also distinguishable. In that case, the question was whether the manufacturer of a cell phone 27 “owes a duty to design it in such a manner that a user is incapable of using it while driving.” 30 Cal. App. Sth at 152. But the Legislature had chosen to permit what the plaintiffs sought to prohibit. /d. at 150. There 28 is no such legislation here. Instead, the strong policy to protect children from known harms. 9 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE THIRD-PARTY MISCONDUCT AND ONLINE CHALLENGE ALLEGATIONS FROM IDENTIFIED SHORT-FORM COMPLAINTS any content. Accordingly, Plaintiffs do not treat Defendants as publishers of others’ content.’ It is also significant that, insofar as Defendants designed their platforms to cause compulsive and “unsupervised or secret use” by minors, this Court has recognized that “Defendants are allegedly liable for their own actions, not for the content of third-party postings.” Dem. Order at 59-61. This Court likewise determined that “[h]olding Meta responsible for a failure to warn of the potentially harmful effects of such design features likewise does not fall within the scope of Section 230 immunity.” /d. at 86. Under this Court’s prior holdings, Plaintiffs can obtain relief for their harms (such as addiction, anxiety, etc.) that stem directly from Defendants’ duty to not harm minor users through their design and operation of the platforms. Defendants now attack specific harms (sex abuse, CSAM and dangerous challenges), but those 10 harms flow from Defendants’ conduct that led to compulsive use and that prevented parental oversight 11 and control. These harms occurred because 1) Defendants caused Plaintiffs’ addiction, and 2) Defendants 12 created an environment where parents remained in the dark to the activities of their children. 13 Further, Defendants—in arguing for an interpretation of Section 230 that would immunize their 14 conduct that causes harm to minors from sexual abuse and dangerous challenges—ignore the 15 congressional purposes in Section 230. In addition to its desire to protect internet providers from suits for 16 hosting content, Congress also intended to “maximize user control over what information is received,” 17 and “empower parents to restrict their children’s access to objectionable or inappropriate online material.” 18 47 U.S.C. § 230 (b)(2, 3). See Dem. Order at 61-62. Indeed, Section 230 was titled “Online Family 19 Empowerment,” and Section 230(c) falls under the subheading, “Protection for ‘Good Samaritan’ 20 blocking and screening of offensive material.” Telecommunication Act of 1996, Pub. L. No. 104-104, 21 110 Stat 56. Defendants’ sweeping interpretation of Section 230 would turn these congressional purposes 22 on their heads by granting immunity to social media companies for conduct that facilitates sexual abuse 23 of minors, but Section 230 “was not meant to create a lawless no-man’s land on the Internet.” Fair Hous. 24 ° Even if Section 230 were ambiguous (which is denied), “when the text of an express pre-emption clause 25 is susceptible of more than one plausible reading, courts ordinarily ‘accept the reading that disfavors pre- emption.’” Altria v. Good, 555 U.S. 70, 77 (2008). For example, in Brown v. Mortensen, 51 Cal. 4th 1052, 26 1063-64 (2011), the California Supreme Court found the term “subject matter” ambiguous in the Fair Credit Reporting Act’s express preemption provision as a court could either interpret the undefined word 27 “matter” narrowly to preempt fewer state law claims or more broadly to preempt more state law claims. The court unanimously adopted the narrow interpretation because the presumption against preemption 28 “applies not only to the existence, but also to the extent, of federal preemption.” Jd. at 1064. 10 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE THIRD-PARTY MISCONDUCT AND ONLINE CHALLENGE ALLEGATIONS FROM IDENTIFIED SHORT-FORM COMPLAINTS Council of San Fernando Valley v. Roommates.com (9th Cir. 2008) 521 F.3d 1157, 1164 (en banc); Hassell v. Bird (2018) 5 Cal. 5th 522, 559 (Kruger, J., concurring) (“[W]hen it comes to addressing new questions about the scope of Section 230 immunity, we should proceed cautiously, lest we inadvertently forbid an even broader swath of legal action than Congress could reasonably have intended.”). 2 This Court should rejected Defendants’ harms-based standard. Although Defendants argue that harms from sex abuse and challenges relate to content, “[e]ven if third-party content is a ‘but-for’ cause of the harm suffered by a plaintiff, the action is not barred by Section 230 if the cause of action does not seek to hold the provider liable as a publisher.” Dem. Order at 19; see also id. at 63-64. Courts have rejected a but-for standard that would immunize internet service 10 providers anytime that content is a link in the causal chain. Hassell v. Bird, (2018) 5 Cal.5th 522, 542-43 11 (“not all legal duties owed by Internet intermediaries necessarily treat them as the publishers of third-party 12 content, even when thes