Motion,Ex Parte: CHRISTINA ARLINGTON SMITH INDIVIDUALLY AND AS SUCCESSOR-IN-INTEREST TO LALANI WALTON, DECEASED, ET AL. VS TIKTOK INC., ET AL.

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                                1 PANISH | SHEA | BOYLE | RAVIPUDI LLP
   BRIAN J. PANISH, State Bar No. 116060
 2   bpanish@psbr.law
   RAHUL RAVIPUDI, State Bar No. 204519
 3   rravipudi@psbr.law
   JESSE CREED, State Bar No. 272595
 4   jcreed@psbr.law
   11111 Santa Monica Boulevard, Suite 700
 5 Los Angeles, CA 90025
   Telephone: 310.477.1700
 6 Facsimile: 310.477.1699

 7 MORGAN & MORGAN
   EMILY C. JEFFCOTT (admitted pro hac vice)
 8  ejeffcott@forthepeople.com
   633 West Fifth Street, Suite 2652
 9 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   (The School Board of Brevard County, Fla. v.     IDENTIFIED SCHOOL DISTRICT
     Meta Platforms, Inc., et al., Case No.           COMPLAINTS
25   24STCV01468)
                                                      Date: May 13, 2024
26   (San Diego Unified School District v. Meta       Time: 10:30 a.m.
     Platforms, Inc., et al., Case No. 23STCV14900)   Dept.: SSC-12
27

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                         PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE
                                 IDENTIFIED SCHOOL DISTRICT COMPLAINTS
 1   (Vancouver School District No. 37 v. Meta
     Platforms, Inc., et al., Case No. 23STCV14780)
 2
     (West Warwick Public Schools v. Meta
 3   Platforms, Inc., et al., Case No. 23STCV26875)
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                       PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE
                               IDENTIFIED SCHOOL DISTRICT COMPLAINTS
 1                                                      TABLE OF CONTENTS
                                                                                                                                                    Page
 2

 3 I.     INTRODUCTION ...........................................................................................................................1

 4 II.    SUMMARY OF FACTUAL ALLEGATIONS...............................................................................2

 5 III.   LEGAL STANDARD......................................................................................................................4

 6 IV.    ARGUMENT ...................................................................................................................................5

 7        A.        Section 230 Does Not Bar Plaintiffs’ Allegations. ..............................................................5

 8                  1.         Plaintiffs’ Public Nuisance Claims are not Barred by Section 230 Because
                               They Arise from Defendants’ Conduct that Interferes with Public Rights. .............6
 9
                    2.         Plaintiffs’ Negligence Claims Do Not Target Defendants’ Role as
10                             Publishers. ................................................................................................................8
11                  3.         Arguments as to Platform Features do not Command a Different Result. ..............9
12        B.        The First Amendment Does Not Require Striking Any of Plaintiffs’ Allegations. ...........14
13                  1.         This Court’s Prior Ruling Was Correct. ................................................................14
14                  2.         As with Section 230, Defendants’ Arguments Regarding Specific Features
                               Do Not Change the Analysis as to the First Amendment. .....................................16
15
          C.        Defendants had a Duty to Protect Against Foreseeable Harms to School District
16                  Plaintiffs, Including Harm From Third Parties. .................................................................19
17        D.        Plaintiffs Have Alleged that Defendants Proximately Caused Their Injuries. ..................21
18 V.     CONCLUSION ..............................................................................................................................25
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                                                                           i
                             PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE
                                     IDENTIFIED SCHOOL DISTRICT COMPLAINTS
 1                                                       TABLE OF AUTHORITIES

 2                                                                                                                                              Page

 3
      CASES
 4
      A.M. v. Omegle.com, LLC,
 5           614 F. Supp. 3d 814 (D. Or. 2022) ........................................................................................... 7, 13

 6 ACLU v. Mukasey,
          534 F.3d 181 (3d Cir. 2008).......................................................................................................... 16
 7
   Aguilar v. Avis Rent A Car Sys., Inc.,
 8        21 Cal.4th 121 (1999) ................................................................................................................... 15

 9 Ashcroft v. ACLU,
          542 U.S. 656 (2004) ...................................................................................................................... 17
10
   Banks v. Bowen’s Landing Corp.
11        522 A.2d 1222 (R.I. 1987) ............................................................................................................ 19

12 Barnes v. Yahoo!, Inc.,
          570 F.3d 1096 (9th Cir. 2009, amended Sept. 28, 2009) ................................................................ 7
13
   Barrett v. Rosenthal,
14        40 Cal.4th 33 (2006) ..................................................................................................................... 12

15 Bauer v. Armslist, LLC,
          572 F. Supp. 3d 641 (E.D. Wisc. 2021) .......................................................................................... 7
16
   Bernethy v. Walt Failor’s, Inc.,
17        653 P.2d 280 (Wash. 1982)........................................................................................................... 24

18 Bill v. Superior Court,
            137 Cal.App.3d 1002 (1982) ........................................................................................................ 19
19
   Brown v. Entertainment Merchants Ass’n,
20          564 U.S. 786 (2011) ................................................................................................................ 17, 18

21 City & Cnty. of San Francisco v. Purdue Pharma L.P.,
          491 F. Supp. 3d 610 (N.D. Cal. 2020) ................................................................................ 8, 22, 23
22
   Clay Elec. Co-op., Inc. v. Johnson,
23        873 So. 2d 1182 (Fla. 2003).......................................................................................................... 20

24 CLD Constr. v. San Ramon,
         120 Cal.App.4th 1141 (2004) ......................................................................................................... 5
25
   Clements v. Tashjoin,
26       168 A.2d 472 (R.I. 1961) .............................................................................................................. 24

27 Connection Distribution Co. v. Holder,
         557 F.3d 321 (6th Cir. 2009) ........................................................................................................ 17
28
                                                              ii
                                   PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE
                                           IDENTIFIED SCHOOL DISTRICT COMPLAINTS
 1 Crosby v. Twitter, Inc.,
          921 F.3d 617 (6th Cir. 2019) ........................................................................................................ 25
 2
   Daniel v. Armslist, LLC,
 3        926 N.W.2d 710 (Wisc. 2019) ........................................................................................................ 7

 4 Dart v. Craigslist, Inc.,
           665 F. Supp. 2d 961 (N.D. Ill. 2009) .......................................................................................... 7, 8
 5
   Demetriades v. Yelp, Inc.,
 6         228 Cal.App.4th 294 (2014) ......................................................................................................... 10

 7 Doe v. Internet Brands, Inc.,
          824 F.3d 846 (9th Cir. 2016) .................................................................................................. 5, 6, 9
 8
   Estados Unidos Mexicanos v. Smith & Wesson Brands, Inc.,
 9        91 F.4th 511 (1st Cir. 2024) .................................................................................................... 22, 25

10 Ferraro v. Camarlinghi,
           161 Cal.App.4th 509 (2008) ........................................................................................................... 4
11
   Fields v. Twitter, Inc.,
12         881 F.3d 739 (9th Cir. 2018) .................................................................................................. 24, 25

13 Grieco v. Daiho Sangyo, Inc.,
          344 So. 3d 11 (Fla. Dist. Ct. App. 2022) ...................................................................................... 21
14
   Hacala v. Bird Rides, Inc.,
15        90 Cal.App.5th 292 (2023) ..................................................................................................... 20, 22

16 Hassell v. Bird,
          5 Cal.5th 522 (2018) ................................................................................................................... 6, 9
17
   Hodgkins v. Peterson,
18        355 F.3d 1048 (7th Cir. 2004) ...................................................................................................... 18

19 Illeto v. Glock Inc.,
            349 F.3d 1191 (9th Cir. 2003) ........................................................................................................ 8
20
   In re JUUL Labs, Inc., Mktg., Sales Pracs., & Prod. Liab. Litig.,
21          497 F. Supp. 3d 552 (N.D. Cal. 2020) ................................................................................... passim

22 In re Soc. Media Adolescent Addiction/Pers. Inj. Prod. Liab. Litig.,
           No. 4:22-MD-03047-YGR, 2023 WL 7524912 (N.D. Cal. Nov. 14, 2023)................................ 19
23
   Kathleen R. v. City of Livermore,
24         87 Cal.App.4th 684 (2001) ............................................................................................................. 8

25 Kesner v. Superior Ct.,
           1 Cal.5th 1132 (2016) ............................................................................................................. 20, 24
26
   Lee v. Amazon.com, Inc.,
27         76 Cal.App.5th 200 (2022) ........................................................................................................... 18

28
                                                                             iii
                                   PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE
                                           IDENTIFIED SCHOOL DISTRICT COMPLAINTS
 1 Lemmon v. Snap,
          995 F.3d 1085 (9th Cir. 2021) ............................................................................................... passim
 2
   Linde v Arab Bank, PLC,
 3        97 F. Supp. 3d 287 (E.D.N.Y. 2015) ............................................................................................ 24

 4 Martin v. Marciano,
          871 A.2d 911 (R.I. 2005) .............................................................................................................. 20
 5
   Modisette v. Apple Inc.,
 6        30 Cal.App.5th 136 (2018) ..................................................................................................... 21, 24

 7 NetChoice, LLC v. Griffin,
         No. 5:23-CV-05105, 2023 WL 5660155 (W.D. Ark. Aug. 31, 2023) .................................... 16, 18
 8
   NetChoice, LLC v. Yost,
 9       2024 WL 104336 (S.D. Ohio Jan. 9, 2024) .................................................................................. 18

10 Pantalone v. Advanced Energy Delivery Sys., Inc.,
          694 A.2d 1213 (R.I. 1997) ............................................................................................................ 23
11
   PH II v. Superior Ct.,
12        33 Cal.App.4th 1680 (1995) ................................................................................................. 1, 4, 22

13 Pierce v. Providence Ret. Bd.,
           15 A.3d 957 (R.I. 2011) ................................................................................................................ 22
14
   Pratt v. Thomas,
15         491 P.2d 1285 (Wash. 1971)......................................................................................................... 21

16 Roemmich v. 3M Co.,
         509 P.3d 306, (Wash. Ct. App. 2022) ........................................................................................... 22
17
   Rowland v. Christian,
18       443 P.2d 561 (Cal. 1968) .............................................................................................................. 19

19 Ruiz v. Tenet Hialeah Healthsystem, Inc.,
           260 So. 3d 977 (Fla. 2018)............................................................................................................ 22
20
   San Jose Sharks v. Super. Ct. of Santa Clara Cnty.,
21         98 Cal.App.5th 158 (2023) ............................................................................................................. 5

22 Schooley v. Pinch’s Deli Mkt., Inc.,
           951 P.2d 749 (Wash. 1998)........................................................................................................... 23
23
   Seide v. State,
24         875 A.2d 1259 (R.I. 2005) ............................................................................................................ 21

25 Shurben v. Dollar Rent-A-Car,
          676 So. 2d 467 (Fla. Dist. Ct. App. 1996) .................................................................................... 24
26
   Smith v. Fla. Power & Light Co.,
27        857 So. 2d 224 (Fla. Dist. Ct. App. 2003) .................................................................................... 23

28
                                                                            iv
                                   PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE
                                           IDENTIFIED SCHOOL DISTRICT COMPLAINTS
 1 Soc. Media Cases,
           No. 22STCV21355, 2023 WL 6847378 (Cal.Super. Oct. 13, 2023) ..................................... passim
 2
   State v. Lead Indus.,
 3         951 A.2d 451 (R.I. 2008) .............................................................................................................. 23

 4 Thompson v. County of Alameda,
          27 Cal.3d 741 (1980) .................................................................................................................... 19
 5
   Twitter, Inc. v. Taamneh,
 6        598 U.S. 471 (2023) ................................................................................................................ 24, 25

 7 Webber v. Armslist LLC,
         70 F.4th 945 (7th Cir. 2021) ........................................................................................................... 7
 8
   Weirum v. RKO General, Inc.,
 9       15 Cal.3d 40 (1975) ................................................................................................................ 14, 15

10

11 STATUTES

12 18 U.S.C. § 2333(a) .................................................................................................................................. 24

13 47 U.S.C. § 230 .................................................................................................................................. passim

14 47 U.S.C. § 230(c)(1).................................................................................................................................. 8

15 Cal. Civ. Proc. Code § 436 ......................................................................................................................... 4

16 Cal. Civ. Proc. Code § 452 ......................................................................................................................... 5

17

18 MISCELLANEOUS

19 O’Connor’s California Practice: Civil Pretrial, Ch. 4-J § 2 (2023) ............................................................ 5

20 Rest. (2d) Torts § 8 21B(1) (1979) ............................................................................................................. 6

21 Rest. (2d) Torts § 8 21B(2) (1979) ............................................................................................................. 6

22 Rest. 3d Torts: Phys. & Emot. Harm § 19 (2010)..................................................................................... 22

23

24

25

26

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                                                                                v
                                    PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE
                                            IDENTIFIED SCHOOL DISTRICT COMPLAINTS
 1 I.       INTRODUCTION

 2          This Court should deny Defendants’ Motion to Strike, much of which asks this Court to strike

 3 allegations based on arguments that this Court has already rejected. Defendants devoted the majority of

 4 their Motion to Strike to attacking Plaintiffs’ allegations under 47 U.S.C. § 230 and the First Amendment,

 5 even though this Court has ruled that Plaintiffs’ claims do not violate those provisions. See Soc. Media

 6 Cases (Cal.Super. Oct. 13, 2023) No. 22STCV21355, 2023 WL 6847378, at *32 (holding that “Plaintiffs’

 7 claims are not barred by Section 230 because the alleged wrongdoing does not “treat[ ] [the provider] as

 8 the publisher or speaker of any information provided by another information content provider”); id. at

 9 *37 (rejecting the argument that Plaintiffs’ claims infringed on protected speech and stating that “the

10 design features of Defendants’ platforms can best be analogized to the physical material of a book

11 containing Shakespeare’s sonnets, rather than to the sonnets themselves”).

12          Defendants have not demurred under Section 230 or the First Amendment, so they are trying to

13 parse Plaintiffs’ allegations in a manner that is disfavored by California courts. PH II v. Superior Ct.

14 (1995) 33 Cal.App.4th 1680, 1683 (stating that there is no “‘line item veto’ for the civil defendant”).

15 Defendants falsely paint many of Plaintiffs’ allegations as focusing on content, but in reality Plaintiffs’

16 claims are based on Defendants’ platform design choices that purposely addicted children, as well as their

17 failure to provide adequate warnings to users or the public at large, including Plaintiffs. And, Defendants’

18 arguments about content are particularly ill-suited for school district claims, as such claims do not depend

19 on any particular content. These Plaintiffs’ claims are based on the aggregate effect of social media

20 addiction and its impact on students, which have foreseeably harmed school districts around the nation.

21          The Plaintiffs at issue are school districts in California, Florida, Rhode Island, and Washington.

22 As detailed below, and in Plaintiffs’ complaints, the youth mental health crisis, largely fueled by social

23 media addiction, has caused massive problems for these districts. As stated in one investigative report,

24 social media addiction has left American schools “in crisis.” Plaintiffs’ problems include, but are not

25 limited to, massive disruptions to the learning process, the need for more resources to address social media

26 use in schools, the need for more counselors and other personnel to help students with mental health issues

27 fueled by their addictions, the need to repair property damage, and the need to invest in new technologies

28 to address rampant social media use. None of these issues are content-dependent.
                                                         1
                          PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE
                                  IDENTIFIED SCHOOL DISTRICT COMPLAINTS
 1          The remainder of Defendants’ Motion to Strike largely duplicates their demurrer arguments.

 2 Defendants owed a duty of care to the Plaintiffs’ schools based on the foreseeability of the harm, and

 3 based on policy factors. Defendants knew about the harms they were causing in schools and actively

 4 sought to addict children to their platforms. Thus, the foreseeability of the harm is clear. Further, the policy

 5 factors strongly support holding the Defendants accountable when they have preyed on children for their

 6 own profit, thereby disrupting everyone’s constitutionally protected right to public education.

 7          Finally, Plaintiffs’ complaints demonstrate that Defendants have proximately caused the Plaintiffs’

 8 harms, whether under a nuisance or negligence theory. For this issue, as with many issues Defendants

 9 have raised, the JUUL litigation is directly on point. Judge Orrick recognized that the school district

10 plaintiffs brought claims based on their own harms, proximately caused by the Defendants’ dangerous

11 behavior toward their students. Thus, their claims are not “derivative.” See In re JUUL Labs, Inc., Mktg.,

12 Sales Pracs., & Prod. Liab. Litig. (N.D. Cal. 2020) 497 F. Supp. 3d 552, 621 (holding that “the damages

13 incurred by end-users are wholly distinct from the damages incurred by” the school district plaintiffs).

14 The same is true here, as there is a direct link from Defendants’ conduct to Plaintiffs’ damages.

15          This Court, therefore, should overrule the Motion to Strike entirely.

16 II.      SUMMARY OF FACTUAL ALLEGATIONS

17          Defendants have created a public health crisis by intentionally addicting youth to their social media

18 platforms. All Compl. ¶¶ 1-2, 85.1 Defendants have employed various design features to hook children,

19 resulting in more than one-third of children aged 13-to-17 using social media “almost constantly.” Id. at

20 ¶¶ 3-4. While the children have suffered, so, too, have those enlisted with their care. School District

21 Plaintiffs are among the thousands of districts whose teachers, counselors, and other staff members are on

22 the front lines of this mental health crisis. Id. at ¶¶ 19-20. As a result, the schools themselves are “in

23 crisis.” Id. at ¶ 19. While Defendants have turned children into cash machines who generate enormous

24 profits for them, Defendants rely on school districts to address the harms they have caused. Id. at ¶¶ 12,

25 21. The School District Plaintiffs are not mere incidental victims of Defendants’ actions. As laid out

26
     1
27  When citing to paragraphs that are identical in the four complaints at issue, Plaintiffs will use “All
   Compl.” Otherwise, Plaintiffs will cite to each complaint individually, as “Calif. Compl.” (San Diego),
28 “Fla. Compl.” (Brevard County), “R.I. Compl.” (West Warwick), and “Wash. Compl.” (Vancouver).
                                                           2
                          PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE
                                  IDENTIFIED SCHOOL DISTRICT COMPLAINTS
 1 below, all Defendants have intentionally directed their efforts toward maximizing children’s use of their

 2 platforms, including during the school day. School districts are left to deal with the fallout from social

 3 media addiction, while Defendants have profited from poisoning the minds of American children. See,

 4 e.g., All Compl. ¶¶ 9-13, 19-20. These lawsuits attempt to shift the cost of Defendants’ actions back onto

 5 the parties who have caused the “crisis” in schools.

 6          Plaintiffs’ complaints detail Defendants’ deliberate actions to target and encourage social media

 7 use at schools. For instance, Meta has categorized high schools as either “Facebook” or “non-Facebook”

 8 and has analyzed Instagram penetration on a school level. All Compl. ¶ 21. Meta has sought to infiltrate

 9 schools, noting that “high school is the key driver of U.S. teen activity and occupies 6+ hours per day.”

10 Id. ¶ 810. Meta’s internal research revealed in 2019 that due to its “high volume” push notifications, young

11 users were “overload[ed],” “overwhelm[ed],” and compelled to re-open Instagram repeatedly throughout

12 the day. Id. ¶ 333. In 2018, Instagram allotted most of its global marketing budget to targeting 13-to-15-

13 year-old children, a marketing demographic it calls “early high school.” Id. ¶ 257.

14          Snap, Inc.’s Snapchat, meanwhile, boasts about its “Back to School on Snapchat” and “Snap to

15 School” programs, noting that 90% of students aged 13 to 24 in the United States and United Kingdom

16 use the app. Id. ¶ 819. Snapchat even launched a major update during the school day, causing a teacher to

17 state that it was the most disruptive thing in the teacher’s 16-year career, as the update was like “crack”

18 for the students. Id. ¶ 818. In May 2012, CEO Evan Spiegel reported that the company was “thrilled” to

19 learn that most of Snapchat’s users were high school students sending “behind-the-back photos of teachers

20 and funny faces” to each other during class. Id. ¶ 471.

21          Similarly, TikTok has acknowledged that its platform interferes with the school day and student

22 sleep, admitting that “we send notifications to users during the school day and in some cases, up until

23 midnight.” All Compl. ¶ 815. TikTok has also directly targeted schools. TikTok identified approximately

24 80 high schools around the United States and sent them a TikTok toolkit for “back to school nights.” Id.

25 ¶ 816. TikTok views U.S. teens as a “golden audience” and has designed its platform to capture their

26 attention. Id. ¶ 578. TikTok’s infinite scroll acts as “behavioral cocaine,” according to its designer, id. ¶¶

27 636-38, and TikTok has acknowledged that the design of its platform causes addictive behaviors that are

28 harmful to mental health. Id. ¶ 702.
                                                          3
                          PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE
                                  IDENTIFIED SCHOOL DISTRICT COMPLAINTS
 1          Google’s YouTube directly promotes classroom use on a website labeled YouTube.com/Teachers,

 2 which provides “tips and tricks for bringing YouTube into the classroom.” Id. ¶ 821. Google even pitched

 3 toy-maker Mattel for advertising, claiming that YouTube is the industry leader in reaching children aged

 4 6 to 11. Id. ¶ 822. And, by connecting YouTube accounts to Google accounts such as G-mail, Google

 5 makes it more difficult for addicted children to delete their YouTube accounts. Id. ¶ 783.

 6          All of these efforts have caused rampant use by schoolchildren throughout the day, leading to

 7 chaos in schools around the nation, including in the Plaintiffs’ districts. See, e.g., All Compl. ¶¶ 2, 792-

 8 94. The harms to Plaintiffs include, but are not limited to, resources needed to address the dramatic

 9 disruption to the learning process; additional counselors and other personnel needed to address the mental

10 health crisis among students; technology needed to address rampant social media use in schools; repairs

11 needed to address property damage caused by affected students; and, for some districts, physical barriers

12 such as magnetic pouches that disable phones. See id. ¶¶ 19-20, 808.

13          Critically, the School District Plaintiffs’ claims do not depend on any particular content released

14 by Defendants. Rather, Plaintiffs’ harms derive from the overall impact of social media addiction, and

15 particularly from design features that cause children to use social media throughout the day. See, e.g., All

16 Compl. ¶¶ 3-4. The other key driver of the harms to school districts is addiction to social media that causes

17 mental health problems for children. Id. at ¶¶ 795-803. When large numbers of children are angry,

18 depressed, and otherwise suffering through mental health problems caused by addiction, the cumulative

19 effect is damaging for all school districts, including these Plaintiffs’ districts. See id.

20 III.     LEGAL STANDARD

21          Under Cal. Civ. Proc. Code § 436, “[t]he court may … upon terms it deems proper: (a) Strike out

22 any irrelevant, false, or improper matter inserted in any pleading[; or] (b) Strike out all or any part of any

23 pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.”

24 “[W]hen a substantive defect is clear from the face of a complaint, such as a violation of the applicable

25 statute of limitations or a purported claim of right which is legally invalid, a defendant may attack that

26 portion of the cause of action by filing a motion to strike.” PH II, 33 Cal.App.4th at 1682–83. However,

27 “such use of the motion to strike should be cautious and sparing,” as there is no “‘line item veto’ for the

28 civil defendant.” Id. at 1683; see also Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 528 (holding
                                                           4
                           PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE
                                   IDENTIFIED SCHOOL DISTRICT COMPLAINTS
 1 that motion to strike is improper for substantive defects); O’Connor’s Cal. Practice, Civil Pretrial Ch. 4-J

 2 § 2 (2023 ed.) (noting that Courts of Appeal “disagree” as to whether a motion to strike is permissible to

 3 challenge a substantive defect in a complaint). Courts should “read allegations of a pleading subject to a

 4 motion to strike as a whole, all their parts in their context, and assume their truth.” San Jose Sharks v.

 5 Super. Ct. of Santa Clara Cnty. (2023) 98 Cal.App.5th 158, 165. Plaintiffs’ allegations “must be liberally

 6 construed, with a view to substantial justice between the parties.” Cal. Civ. Proc. Code § 452. In addition,

 7 “[w]here the defect raised by a motion to strike or by demurrer is reasonably capable of cure, leave to

 8 amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question.” CLD

 9 Constr. v. San Ramon (2004) 120 Cal.App.4th 1141, 1146 (citation omitted).

10 IV.      ARGUMENT

11          A.      Section 230 Does Not Bar Plaintiffs’ Allegations.

12          As this Court has held, the relevant Section 230 inquiry is whether Defendants’ duty derives from

13 their “status or conduct as a publisher.” Soc. Media Cases, 2023 WL 6847378, at *30. Plaintiffs’

14 negligence claims arise not from Defendants’ status or conduct as a publisher, but from their “duty not to

15 harm the users of Defendants’ platforms through the design and/or operation of those platforms.” Id. at

16 *23. This is the same standard repeated time-and-again by courts, which this Court applied in the personal

17 injury order. Id.; see also Lemmon v. Snap (9th Cir. 2021) 995 F.3d 1085, 1092-93 (allowing negligent

18 product design claims because “[t]he duty underlying such a claim differs markedly from the duties of

19 publishers as defined in the CDA”); Doe v. Internet Brands, Inc. (9th Cir. 2016) 824 F.3d 846, 852

20 (permitting negligence claims where liability did not turn on the defendant’s “efforts, or lack thereof, to

21 edit, monitor, or remove user-generated content”).

22          This Court should treat public nuisance allegations the same way. Plaintiffs’ nuisance claims do

23 not treat Defendants as publishers simply because publication is relevant to the claim. The key point is,

24 Plaintiffs do not seek to hold Defendants liable in their capacities as publishers. Lemmon, 995 F.3d at

25 1092. Plaintiffs’ public nuisance claims implicate all of Defendants’ nuisance-causing conduct, including

26 their aggressive marketing to minors and their platform designs intended to addict minors, thereby

27 increasing their profits at the expense of the “health, safety, peace, comfort, or convenience” of Plaintiffs’

28 schools. See, e.g., Calif. Compl. ¶ 859; Fla. Compl. ¶ 862; R.I. Compl. ¶ 856; Wash. Compl. ¶ 886.
                                                          5
                          PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE
                                  IDENTIFIED SCHOOL DISTRICT COMPLAINTS
 1          Defendants’ argument twists Section 230 to try to expand their immunity. Defendants recast their

 2 own choices in designing, operating, and marketing their platforms as incidental to their role as publishers

 3 of third-party content. This Court should not take the bait. Under this Court’s prior reasoning, and the

 4 holdings of Lemmon and Internet Brands, Plaintiffs’ claims do not implicate Section 230, because they

 5 target Defendants’ own duty of care to Plaintiffs. As this Court wrote: “Even if third-party content is a

 6 ‘but-for’ cause of the harm suffered by a plaintiff, the action is not barred by Section 230 if the cause of

 7 action does not seek to hold the provider liable as a publisher.” Soc. Media Cases, 2023 WL 6847378, at

 8 *12; see also Lemmon, 995 F.3d at 1092-93; Internet Brands, 824 F.3d at 851-52; Hassell v. Bird (2018)

 9 5 Cal.5th 522, 542-43 (reasoning that “even when [a defendant’s] obligations are in some way associated

10 with their publication of [third-party] material,” “not all legal duties owed by Internet intermediaries

11 necessarily treat them as the publishers of third-party content”) (plurality).

12          As explained further below, Plaintiffs’ negligence claims stem from Defendants’ breach of their

13 duty to use due care in the design, operation, and marketing of their platforms to children. A closer look

14 at each of Defendants’ feature-specific arguments only underscores that Defendants’ duty to Plaintiffs

15 exists irrespective of their choices to monitor or remove content on their platforms.

16                  1.     Plaintiffs’ Public Nuisance Claims are not Barred by Section 230 Because

17                         They Arise from Defendants’ Conduct that Interferes with Public Rights.
18          “A public nuisance is an unreasonable interference with a right common to the general public.”
19 Restatement (Second) of Torts (1979) § 821B(1). The analysis looks to a defendant’s actions, choices,

20 and affirmative conduct. Id. at § 821B(2). Here, Plaintiffs’ public nuisance claims do not treat Defendants

21 as publishers or speakers of any content—but rather, as entities engaged in a course of conduct that, in

22 service of corporate profits, substantially and unreasonably interfered with public rights. See Calif. Compl.

23 ¶¶ 857-64; Fla. Compl. ¶¶ 860-67; R.I. Compl. ¶¶ 867-74; Wash. Compl. ¶¶ 884-91. Specifically,

24 Plaintiffs allege that Defendants unreasonably interfered with the public rights to health and education by

25 designing their platforms to addict children, and by directly marketing their platforms to children, despite

26 knowing that the platforms were especially harmful to them. Id.

27          Defendants’ cited cases actually show why Plaintiffs’ public nuisance claims should survive
28 Section 230. See Demurrer at 22-23. For instance, in Daniel v. Armslist, LLC (Wisc. 2019) 926 N.W.2d
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 1 710, the court rejected a public nuisance claim where allegations that a website facilitated illegal gun sales

 2 amounted to “simply another way of claiming that Armslist is liable for publishing third-party firearm

 3 advertisements and for failing to properly screen who may access this content.” Id. at 725-26. In other

 4 words, “[t]he act or omission alleged to have created the nuisance [wa]s Armslist’s provision of a forum

 5 for third parties to post and view firearms advertisements.” Id. at 726. Other courts, following Daniel,

 6 have found that public nuisance claims could proceed where those claims did not “challenge the content

 7 of ads posted on the Armslist.com website[.]” Bauer v. Armslist, LLC (E.D. Wisc. 2021) 572 F. Supp. 3d

 8 641, 663, aff’d sub nom. Webber v. Armslist LLC (7th Cir. 2021) 70 F.4th 945. Rather, the surviving

 9 claims “alleged that Armslist should have structured the website differently,” for example by “includ[ing]

10 safeguards and screening/monitoring provisions,” and by “implement[ing] measures that would prevent

11 illegal firearms dealers from using the website to sell guns without a license.” Id.

12          Plaintiffs’ public nuisance claims here target similar conduct—i.e., Defendants’ choices in

13 “designing, developing, marketing, supplying, promoting, advertising, operating, and distributing their

14 social media platforms in a manner intended to maximize the time youth spend on their respective

15 platforms,” despite the known risk that doing so would “directly facilitate[] the widespread, excessive,

16 and habitual use of their platforms.” Calif. Compl. ¶ 873; Fla. Compl. ¶ 877; R.I. Compl. ¶ 883; Wash.

17 Compl. ¶ 900. These claims are based on Defendants’ roles as designers and promoters of their platforms,

18 not on any content displayed to any particular user. See Lemmon, supra, 995 F.3d at 1093. To comply

19 with their duty to refrain from unreasonable interference with rights general to the public, Defendants

20 would not need to alter third-party content; they would simply need to re-design their platforms and

21 provide better warnings. See A.M. v. Omegle.com, LLC (D. Or. 2022) 614 F. Supp. 3d 814, 820 (holding

22 Section 230 inapplicable to claim where the obligation plaintiff sought to impose would require website

23 to merely “change its design and warnings”).

24          Dart v. Craigslist, Inc. (N.D. Ill. 2009) 665 F. Supp. 2d 961, is also unhelpful for Defendants. Dart

25 differs from this case on at least the third prong of the test from Barnes v. Yahoo!, Inc. (9th Cir. 2009) 570

26 F.3d 1096, 1100-01, as amended (Sept. 28, 2009) (holding that “subsection (c)(1) only protects from

27 liability (1) a provider or user of an interactive computer service (2) whom a plaintiff seeks to treat, under

28 a state law cause of action, as a publisher or speaker (3) of information provided by another information
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 1 content provider”). The Dart court held that Craigslist was not liable for third-party posts advertising adult

 2 services where it did nothing to cause those posts, and in fact, warned against them. Id. at 967-69. In other

 3 words, the duty at issue in Dart was to refrain from “negligently publishing harmful information created

 4 by its users.” Id. at 967-68 (emphasis added). The allegations did not focus on the design or marketing of

 5 Craigslist, as Plaintiffs’ allegations do here. Similarly, in Kathleen R. v. City of Livermore (2001) 87

 6 Cal.App.4th 684, plaintiffs challenged a library’s provision of internet access to all citizens, including the

 7 minors. Id. at 691. The library risked violating the constitution if it did not provide this service for all

 8 citizens, id. at 691-92, an issue not present here. And clearly, the library had no role in designing or

 9 marketing the internet sites that gave minors access to pornography. See generally id.

10          None of these cases speak to Plaintiffs’ core public nuisance allegations here—allegations of a

11 specific course of conduct by Defendants to target children as a customer base, despite knowing they will

12 addict those children and substantially interfere with the public rights to health and education. These

13 nuisance claims are based upon Defendants’ own conduct See, e.g., Illeto v. Glock Inc., (9th Cir. 2003)

14 349 F.3d 1191, 1210-14 (claims under California law for “creating an illegal secondary market for guns”);

15 In re JUUL, 497 F. Supp. 3d at 646 (claims for “aggressive promotion of Juul to teens and efforts to create

16 and maintain an e-cigarette market based on youth sales”); City & Cnty. of San Francisco v. Purdue

17 Pharma L.P. (N.D. Cal. 2020) 491 F. Supp. 3d 610, 673 (defendants “promoted, distributed, and dispensed

18 opioids, despite knowing of the hazard that such conduct would create”) (cleaned up). Accordingly, the

19 Court should similarly permit Plaintiffs’ public nuisance claims.

20                  2.     Plaintiffs’ Negligence Claims Do Not Target Defendants’ Role as Publishers.

21          As this Court held, where a plaintiff’s claims are “based on ... features allegedly negligently crafted
22 or implemented by Defendants, [those] claims are not barred by Section 230 because the alleged

23 wrongdoing does not ‘treat the provider as the publisher or speaker of any information provided by another

24 information content provider.’” Social Media Cases, 2023 WL 6847378, at *32 (quoting 47 U.S.C. § 230,

25 subd. (c)(1)) (cleaned up). Plaintiffs’ allegations fall squarely within that holding. Plaintiffs allege that

26 Defendants failed to act as a reasonable actor would and, to avoid liability, Defendants would have to alter

27 their design, their operation and marketing choices, and their warnings. Plaintiffs do not allege that they

28 would have to remove users’ content or otherwise behave differently as publishers. See id. at *31; see
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 1 also id. at *32 (claims may proceed “[s]o long as providers are not punished for publishing third-party

 2 content”). Plaintiffs allege that Defendants had a duty “to take all reasonable steps necessary to design,

 3 research, market, advertise, promote, operate, and/or distribute their platforms in a way that is not

 4 unreasonably dangerous to consumers [and] users, including youth.” Calif. Compl. ¶ 891; Fla. Compl. ¶

 5 893; R.I. Compl. ¶ 903.

 6          Defendants attempt to recast their negligence as publishing activity. But following their reasoning

 7 would require this Court to ignore established law. Plaintiffs allege that Defendants’ breach arose from

 8 their failure to conduct thorough testing, including testing to determine whether their platforms “were safe

 9 for youth users”; their failure to “use reasonable and prudent care” in the design, production, operation,

10 and marketing of their platforms “so as to avoid the risk of encouraging extended social media use” that

11 Defendants knew to be harmful; their choice to “[d]esign[] their platforms to maximize the amount of

12 time users spend on the platform” while failing to implement “adequate safeguards” to minimize the risk

13 of such use; and their failure to warn users and parents about known risks of using their platforms, while

14 representing that their platforms were safe for teens and children to use. Calif. Compl. ¶ 899; Fla. Compl.

15 ¶ 901; R.I. Compl. ¶ 910. These allegations directly target Defendants’ own choices and conduct and have

16 “‘nothing to do with’ [Defendants’] editing, monitoring, or removing of the content that [their] users

17 generate” on their platforms. Lemmon, supra, 995 F.3d at 1092 (quoting Internet Brands, supra, 824 F.3d

18 at 852); accord Social Media Cases, 2023 WL 6847378, at *31-34. Under Hassell, Defendants are not

19 immune from a negligence suit, because the duty they owed to Plaintiffs does not require the Court to treat

20 them as publishers. See Hassell, supra, 5 Cal.5th at 542-43.

21                  3.      Arguments as to Platform Features do not Command a Different Result.

22          “Section 230 bars liability only if the cause of action seeks to impose liability for the provider’s
23 publication decisions regarding third party content—for example, whether or not to publish and whether

24 or not to depublish.” Social Media Cases, 2023 WL 6847378, at *11. As laid out above, this Court does

25 not need to review each feature Defendants seek to strike because Plaintiffs do not seek to hold Defendants

26 liable as publishers. But if the Court does consider Defendants’ feature-specific arguments, they do not

27 compel a different result. At no point do Plaintiffs seek liability for a publication decision.

28          Section 230 permits Plaintiffs to hold Defendants liable for conduct that put Plaintiffs’ students at
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 1 risk and caused Plaintiffs’ injuries, including Defendants’ design choices that recommend connections

 2 between minor and adult accounts; allow for ephemeral and private content sharing; format content in an

 3 addictive, short-form manner; and create product features that exacerbate teens’ desire for social approval.

 4 Plaintiffs allege that Defendants were negligent not only in designing and operating their platforms, but

 5 also in failing to warn the public and their users about the risks associated with young people using their

 6 platforms. Here, as with the personal injury claims, “Defendants are allegedly liable for their own actions,

 7 not for the content of third-party postings.” Soc. Media Cases, 2023 WL 6847378, at *32.

 8          Plaintiffs allege that Defendants failed to meet their duty of care as the architects of these

 9 platforms. They do not allege that Defendants should have made different publication decisions.

10          Defendants’ Promotion of Challenges. Defendants ask the Court to strike all allegations relating

11 to schools’ property damage, arguing that such allegations treat Defendants—particularly ByteDance—

12 as publishers. Demurrer at 24 & n.20. Not so. Plaintiffs allege that ByteDance “actively promotes”

13 challenges, and that ByteDance “incorporated” promotion and marketing of challenges “into TikTok’s

14 architecture.” All Compl. ¶ 652. Plaintiffs further allege that ByteDance “encourages businesses to create

15 challenges as a form of marketing,” id. ¶ 653, while its algorithms “promote challenges that specifically

16 target school districts.” Id. at ¶ 658. Defendants rely on inapposite federal decisions holding that

17 algorithmic recommendations may be barred by Section 230. These decisions do not address claims that

18 allege a Defendants’ affirmative conduct in the promotion and marketing of their platforms—activity that

19 directly implicates Defendants’ own negligent choices. See Demetriades v. Yelp, Inc. (2014) 228

20 Cal.App.4th 294 (reversing grant of motion to strike based on Section 230 where plaintiff sought “to hold

21 Yelp liable for its own statements regarding the accuracy of its filter”). TikTok’s design and use of

22 challenges for user engagement (and advertising revenue) is similar to the Snapchat reward system and

23 speed filter at issue in Lemmon. As in Lemmon, Plaintiffs seek to hold TikTok liable for its own conduct,

24 not the content of others. See Lemmon, 955 F.3d at 1093 & n.4. Section 230 is no bar to Plaintiffs’

25 allegations regarding challenges because they would not require TikTok to remove any content.

26          Defendants’ Algorithm Design-Choices. Defendants likewise seek to strike allegations relating to

27 their engagement algorithms. Demurrer at 24-25. As the Court held, allegations relating to Defendants’

28 algorithmic design are not content-based, but are “appropriately conceptualized as contending Defendants
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 1 engaged in a course of conduct intended to shape the user experience for these Plaintiffs, and that this

 2 course of conduct foreseeably caused personal injury to Plaintiffs.” Soc.