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18C0V328915
Santa Clara — Civil
DAVID KRAMER, (SBN 168452) Electronically Filed
SHELBY PASARELL TSAI (SBN 220408) by Superior Court of CA,
WILSON SONSINI GOODRICH & ROSATI County of Santa Clara,
650 Page Mill Road
Palo Alto, CA 94304-1050 on 822 ay Walker
Telephone: (650) 493-9300 euiss
Facsimile: (650) 565-5100 Case #18CV328915
Email: dkramer@wsgr.com Envelope: 4370812
Email: stsai@wsgr.com
VICTOR JIH (SBN 186515)
WILSON SONSINI GOODRICH & ROSATI
633 West Fifth Street, Suite 1550
Los Angeles, CA 90071-2027
Telephone: (323) 210-2900
Facsimile: (866) 974-7329
Email: vjih@wsgr.com
Attorneys for Defendant Google LLC
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SANTA CLARA
ABDULLAH UZAIR, ANGEL CHAVEZ,
NICHOLAS JOEL LUSKIN, and SALVADOR
CASE NO.: 18CV328915
DE LA O, individually and on behalf of all others GOOGLE’S ANSWER TO
similarly situated, PLAINTIFFS’ FIRST AMENDED
COMPLAINT
Plaintiffs,
v.
GOOGLE LLC, a California Limited Liability
Company,
Defendants.
eS OEE Ee
GOOGLE’S ANSWER TO THE FIRST AMENDED COMPLAINT CASE NO.: 18CV328915n
DEFENDANT GOOGLE LLC’S ANSWER TO THE COMPLAINT
Defendant Google LLC (“Google”) hereby answers the First Amended Class Action
Complaint (“FAC”) filed by plaintiffs Abdullah Uzair, Angel Chavez, Nicholas Joel Luskin, and
Salvador De La O, on behalf of themselves and all others similarly situated (“Plaintiffs”) as
follows:
GENERAL DENIAL
Pursuant to Code of Civil Procedure Section 431.30(d), Google denies generally,
conjunctively and disjunctively, each and every material allegation contained in the FAC and in
each and every purported cause of action contained and asserted therein. Google also denies that
Plaintiffs have suffered any injury, damages, or loss of any sort, or that Plaintiffs are entitled to
any relief at all, by reason of any act or omission or purported act or omission by Google.
AFFIRMATIVE DEFENSES
In addition to those set forth below, Google reserves the right to allege additional
defenses as they become known, or as they evolve during the litigation, and to amend this
Answer accordingly. Google does not believe this case is properly filed as a class action, nor
that any putative class could be certified, but if there are any other members of a certified class,
Google may have additional affirmative defenses to assert against individual members of that
supposed class, and Google expressly reserves such defenses. By alleging the defenses set forth
below, Google is not in any way agreeing or conceding that it has the burden of proof or the
burden of persuasion on any of these issues. Without waiving the foregoing answer and
reservation to assert additional affirmative defenses, Google asserts the following separate and
additional affirmative defenses.
First Affirmative Defense
(Failure to Plead Actionable Claim)
The FAC, and each claim asserted within it, fails to plead an actionable claim upon which
relief can be granted.
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GOOGLE’S ANSWER TO THE FIRST AMENDED COMPLAINT CASE NO.: 18CV328915n
Second Affirmative Defense
(Statute of Limitations)
Plaintiffs’ claims are barred, in whole or in part, by the applicable statute of limitations.
Third Affirmative Defense
(Good Faith Compliance)
Google complied in good faith with the provisions of the Automatic Renewal Law Cal.
Bus. Prof. Code § 17600.
Fourth Affirmative Defense
(Failure to Mitigate Damages)
Plaintiffs are barred from recovering for their injury or damage, if any, because they
failed to make reasonable efforts to mitigate such injury or damage, which would have prevented
any injury or damage. Plaintiffs Abdullah Uzair and Salvador De La O continue to subscribe to
the Google Play Music Service, and have made no attempt to cancel the service. Plaintiff Angel
Chavez cancelled his Google Play Music account after he was charged, but then re-subscribed
one month later. Plaintiff Nicholas Joel Luskin continues to subscribe to Disney+, and has made
no attempt to cancel the service.
Fifth Affirmative Defense
(Waiver)
Plaintiffs’ claims are barred, in whole or in part, by the doctrine of waiver by reason of
Plaintiffs’ conduct, actions, omissions and/or communications. Plaintiffs Abdullah Uzair and
Salvador De La O continue to subscribe to the Google Play Music Service and have made no
attempt to cancel the service. Plaintiff Angel Chavez cancelled his Google Play Music account
after being charged, but then re-subscribed one month later. Plaintiff Nicholas Joel Luskin
continues to subscribe to Disney+, and has made no attempt to cancel the service.
Sixth Affirmative Defense
(Unclean Hands)
Plaintiffs’ claims are barred, in whole or in part, because Plaintiffs acted with unclean
hands with respect to their use of the service. Plaintiffs understood the terms of their
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GOOGLE’S ANSWER TO THE FIRST AMENDED COMPLAINT CASE NO.: 18CV328915n
subscription agreement, and were not deceived or confused about the recurring nature of the
services and costs. Plaintiffs never raised any issue with Google regarding the terms of their
subscriptions, and instead used the services extensively, in the hope that if they remained quiet,
they might ultimately obtain that use without having to pay for it.
Seventh Affirmative Defense
(Due Process and Excessive Fines Clauses)
Plaintiffs’ claims, and those of the purported class, are barred, in whole or in part,
because any award of restitution pursuant to the “unconditional gift” provision contained in Cal.
Bus. Prof. Code § 17603 would violate Google’s due process rights under the United States
and/or California Constitutions, including the due process clauses of the 5" and 14%
Amendments to the United States Constitution and Article I, section 7 of the California
Constitution. The imposition of restitution pursuant to the “unconditional gift” provision
contained in Cal. Bus. Prof. Code § 17603 also would violate the excessive fines clauses of the
United States (Art. Sect. 8) and California Constitutions (Art. I, Sec. 17).
Eighth Affirmative Defense
(Civil Code Section 1784)
Plaintiffs’ claims, and those of the purported class, are barred, in whole or in part,
because, although Google denies that it engaged in any wrongdoing or error of any kind, if any
occurred, it was not intentional and occurred notwithstanding Google’s use of reasonable
preventative procedures and notwithstanding any correction, repair, replacement or remedy
Google may have made.
Ninth Affirmative Defense
(Setoff/Plaintiffs’ Recovery Limited by Benefits Obtained)
Plaintiffs’ recovery is limited by the benefits they obtained from the products they
allegedly purchased. Plaintiffs Abdullah Uzair and Salvador De La O have continued to
purchase and use the Google Play Music Service on a monthly basis. Plaintiff Angel Chavez
cancelled his Google Play Music account after being charged, but then re-subscribed and
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GOOGLE’S ANSWER TO THE FIRST AMENDED COMPLAINT CASE NO.: 18CV328915n
continued to use the service for four months. Plaintiff Nicholas Joel Luskin continues to
purchase and use the Disney+ service on a monthly basis.
Tenth Affirmative Defense
(California Constitution, Article II, Section 10(c))
Plaintiffs’ claims are barred in whole, or in part, under Article II, Section 10(c) of the
California Constitution. Proposition 64 requires that plaintiffs bringing claim under California’s
Unfair Competition Law have suffered an actual loss. The California electors have not amended
or repealed Proposition 64. Plaintiffs assert that Business & Professions Code Section 17603
allow them to pursue claims for violations of the Automatic Renewal Law without alleging an
injury in fact or a loss of money or property. This assertion is in direct contradiction to and
overrides Proposition 64, The complaint thus violates Article II, Section 10(c) of the California
Constitution which requires that an initiative statute passed by voters can only be amended or
repealed by the legislature “when approved by the electors.”
Respectfully submitted,
Dated: May 22, 2020 WILSON SONSINI GOODRICH & ROSATI, P.C.
By: /s/ Shelby Pasarell Tsai
Shelby Pasarell Tsai
Attorneys for Defendant Google LLC
5.
GOOGLE’S ANSWER TO THE FIRST AMENDED COMPLAINT CASE NO.: 18CV328915PROOF OF SERVICE
Uzair v. Google, LLC
Santa Clara County Superior Court Case No. 18CV328915
I, Regina C. Glynn, declare:
I am employed in San Francisco County, State of California. I am over the age of 18
years and not a party to the within action. My business address is Wilson Sonsini Goodrich &
Rosati, | Market Plaza, Spear Tower, Suite 3300, San Francisco, California 94105.
On this date, I served:
GOOGLE’S ANSWER TO PLAINTIFFS’ FIRST-AMENDED
COMPLAINT
By serving the document by electronic transmission via OneLegal system, the electronic
filing service provider of the Superior Court of Santa Clara County, to parties on the electronic
service list maintained for this case:
Laura L. Ho Julian Hammond
James Kan Ari Cherniak
Katharine L. Fisher Polina Pecherskaya
GOLDSTEIN, BORGEN, DARDARIAN & HO HAMMONDLAW, P.C.
300 Lakeside Drive, Suite 1000 1829 Reisterstown Road, Suite 410
Oakland, CA 94612 Baltimore, MD 21208
TEL: 510-763-9800 TEL: 310-601-6766
FAX: 510-835-1417 FAX: 310-295-2385
Email: lho@gbdhlegal.com; Email: jhammond@hammondlawpc.com;
jkan@gbdhlegal.com; acherniak@hammondlawpc.com;
kfisher@gbdhlegal.com pbrandler@hammondlawpc.com
Attorneys for Plaintiff Attorneys for Plaintiff
ABDULLAH UZAIR ABDULLAH UZAIR
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct. Executed at Alameda, California on May 22, 2020.
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GOOGLE’S ANSWER TO THE FIRST AMENDED COMPLAINT CASE No.: 18CV328915
Preview
n 18C0V328915 Santa Clara — Civil DAVID KRAMER, (SBN 168452) Electronically Filed SHELBY PASARELL TSAI (SBN 220408) by Superior Court of CA, WILSON SONSINI GOODRICH & ROSATI County of Santa Clara, 650 Page Mill Road Palo Alto, CA 94304-1050 on 822 ay Walker Telephone: (650) 493-9300 euiss Facsimile: (650) 565-5100 Case #18CV328915 Email: dkramer@wsgr.com Envelope: 4370812 Email: stsai@wsgr.com VICTOR JIH (SBN 186515) WILSON SONSINI GOODRICH & ROSATI 633 West Fifth Street, Suite 1550 Los Angeles, CA 90071-2027 Telephone: (323) 210-2900 Facsimile: (866) 974-7329 Email: vjih@wsgr.com Attorneys for Defendant Google LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA ABDULLAH UZAIR, ANGEL CHAVEZ, NICHOLAS JOEL LUSKIN, and SALVADOR CASE NO.: 18CV328915 DE LA O, individually and on behalf of all others GOOGLE’S ANSWER TO similarly situated, PLAINTIFFS’ FIRST AMENDED COMPLAINT Plaintiffs, v. GOOGLE LLC, a California Limited Liability Company, Defendants. eS OEE Ee GOOGLE’S ANSWER TO THE FIRST AMENDED COMPLAINT CASE NO.: 18CV328915n DEFENDANT GOOGLE LLC’S ANSWER TO THE COMPLAINT Defendant Google LLC (“Google”) hereby answers the First Amended Class Action Complaint (“FAC”) filed by plaintiffs Abdullah Uzair, Angel Chavez, Nicholas Joel Luskin, and Salvador De La O, on behalf of themselves and all others similarly situated (“Plaintiffs”) as follows: GENERAL DENIAL Pursuant to Code of Civil Procedure Section 431.30(d), Google denies generally, conjunctively and disjunctively, each and every material allegation contained in the FAC and in each and every purported cause of action contained and asserted therein. Google also denies that Plaintiffs have suffered any injury, damages, or loss of any sort, or that Plaintiffs are entitled to any relief at all, by reason of any act or omission or purported act or omission by Google. AFFIRMATIVE DEFENSES In addition to those set forth below, Google reserves the right to allege additional defenses as they become known, or as they evolve during the litigation, and to amend this Answer accordingly. Google does not believe this case is properly filed as a class action, nor that any putative class could be certified, but if there are any other members of a certified class, Google may have additional affirmative defenses to assert against individual members of that supposed class, and Google expressly reserves such defenses. By alleging the defenses set forth below, Google is not in any way agreeing or conceding that it has the burden of proof or the burden of persuasion on any of these issues. Without waiving the foregoing answer and reservation to assert additional affirmative defenses, Google asserts the following separate and additional affirmative defenses. First Affirmative Defense (Failure to Plead Actionable Claim) The FAC, and each claim asserted within it, fails to plead an actionable claim upon which relief can be granted. //1 //1 -2- GOOGLE’S ANSWER TO THE FIRST AMENDED COMPLAINT CASE NO.: 18CV328915n Second Affirmative Defense (Statute of Limitations) Plaintiffs’ claims are barred, in whole or in part, by the applicable statute of limitations. Third Affirmative Defense (Good Faith Compliance) Google complied in good faith with the provisions of the Automatic Renewal Law Cal. Bus. Prof. Code § 17600. Fourth Affirmative Defense (Failure to Mitigate Damages) Plaintiffs are barred from recovering for their injury or damage, if any, because they failed to make reasonable efforts to mitigate such injury or damage, which would have prevented any injury or damage. Plaintiffs Abdullah Uzair and Salvador De La O continue to subscribe to the Google Play Music Service, and have made no attempt to cancel the service. Plaintiff Angel Chavez cancelled his Google Play Music account after he was charged, but then re-subscribed one month later. Plaintiff Nicholas Joel Luskin continues to subscribe to Disney+, and has made no attempt to cancel the service. Fifth Affirmative Defense (Waiver) Plaintiffs’ claims are barred, in whole or in part, by the doctrine of waiver by reason of Plaintiffs’ conduct, actions, omissions and/or communications. Plaintiffs Abdullah Uzair and Salvador De La O continue to subscribe to the Google Play Music Service and have made no attempt to cancel the service. Plaintiff Angel Chavez cancelled his Google Play Music account after being charged, but then re-subscribed one month later. Plaintiff Nicholas Joel Luskin continues to subscribe to Disney+, and has made no attempt to cancel the service. Sixth Affirmative Defense (Unclean Hands) Plaintiffs’ claims are barred, in whole or in part, because Plaintiffs acted with unclean hands with respect to their use of the service. Plaintiffs understood the terms of their 3- GOOGLE’S ANSWER TO THE FIRST AMENDED COMPLAINT CASE NO.: 18CV328915n subscription agreement, and were not deceived or confused about the recurring nature of the services and costs. Plaintiffs never raised any issue with Google regarding the terms of their subscriptions, and instead used the services extensively, in the hope that if they remained quiet, they might ultimately obtain that use without having to pay for it. Seventh Affirmative Defense (Due Process and Excessive Fines Clauses) Plaintiffs’ claims, and those of the purported class, are barred, in whole or in part, because any award of restitution pursuant to the “unconditional gift” provision contained in Cal. Bus. Prof. Code § 17603 would violate Google’s due process rights under the United States and/or California Constitutions, including the due process clauses of the 5" and 14% Amendments to the United States Constitution and Article I, section 7 of the California Constitution. The imposition of restitution pursuant to the “unconditional gift” provision contained in Cal. Bus. Prof. Code § 17603 also would violate the excessive fines clauses of the United States (Art. Sect. 8) and California Constitutions (Art. I, Sec. 17). Eighth Affirmative Defense (Civil Code Section 1784) Plaintiffs’ claims, and those of the purported class, are barred, in whole or in part, because, although Google denies that it engaged in any wrongdoing or error of any kind, if any occurred, it was not intentional and occurred notwithstanding Google’s use of reasonable preventative procedures and notwithstanding any correction, repair, replacement or remedy Google may have made. Ninth Affirmative Defense (Setoff/Plaintiffs’ Recovery Limited by Benefits Obtained) Plaintiffs’ recovery is limited by the benefits they obtained from the products they allegedly purchased. Plaintiffs Abdullah Uzair and Salvador De La O have continued to purchase and use the Google Play Music Service on a monthly basis. Plaintiff Angel Chavez cancelled his Google Play Music account after being charged, but then re-subscribed and 4. GOOGLE’S ANSWER TO THE FIRST AMENDED COMPLAINT CASE NO.: 18CV328915n continued to use the service for four months. Plaintiff Nicholas Joel Luskin continues to purchase and use the Disney+ service on a monthly basis. Tenth Affirmative Defense (California Constitution, Article II, Section 10(c)) Plaintiffs’ claims are barred in whole, or in part, under Article II, Section 10(c) of the California Constitution. Proposition 64 requires that plaintiffs bringing claim under California’s Unfair Competition Law have suffered an actual loss. The California electors have not amended or repealed Proposition 64. Plaintiffs assert that Business & Professions Code Section 17603 allow them to pursue claims for violations of the Automatic Renewal Law without alleging an injury in fact or a loss of money or property. This assertion is in direct contradiction to and overrides Proposition 64, The complaint thus violates Article II, Section 10(c) of the California Constitution which requires that an initiative statute passed by voters can only be amended or repealed by the legislature “when approved by the electors.” Respectfully submitted, Dated: May 22, 2020 WILSON SONSINI GOODRICH & ROSATI, P.C. By: /s/ Shelby Pasarell Tsai Shelby Pasarell Tsai Attorneys for Defendant Google LLC 5. GOOGLE’S ANSWER TO THE FIRST AMENDED COMPLAINT CASE NO.: 18CV328915PROOF OF SERVICE Uzair v. Google, LLC Santa Clara County Superior Court Case No. 18CV328915 I, Regina C. Glynn, declare: I am employed in San Francisco County, State of California. I am over the age of 18 years and not a party to the within action. My business address is Wilson Sonsini Goodrich & Rosati, | Market Plaza, Spear Tower, Suite 3300, San Francisco, California 94105. On this date, I served: GOOGLE’S ANSWER TO PLAINTIFFS’ FIRST-AMENDED COMPLAINT By serving the document by electronic transmission via OneLegal system, the electronic filing service provider of the Superior Court of Santa Clara County, to parties on the electronic service list maintained for this case: Laura L. Ho Julian Hammond James Kan Ari Cherniak Katharine L. Fisher Polina Pecherskaya GOLDSTEIN, BORGEN, DARDARIAN & HO HAMMONDLAW, P.C. 300 Lakeside Drive, Suite 1000 1829 Reisterstown Road, Suite 410 Oakland, CA 94612 Baltimore, MD 21208 TEL: 510-763-9800 TEL: 310-601-6766 FAX: 510-835-1417 FAX: 310-295-2385 Email: lho@gbdhlegal.com; Email: jhammond@hammondlawpc.com; jkan@gbdhlegal.com; acherniak@hammondlawpc.com; kfisher@gbdhlegal.com pbrandler@hammondlawpc.com Attorneys for Plaintiff Attorneys for Plaintiff ABDULLAH UZAIR ABDULLAH UZAIR I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed at Alameda, California on May 22, 2020. -6- GOOGLE’S ANSWER TO THE FIRST AMENDED COMPLAINT CASE No.: 18CV328915