Rodriguez v. Google LLC

Background

Anibal Rodriguez and other plaintiffs sued Google over alleged collection of their data through apps that use Google services. They alleged that Google continued collecting data after they asked Google to stop. The case was proceeding on a Third Amended Complaint, after several earlier motions to dismiss. The motion addressed two amended claims and did not seek dismissal of all claims; the opinion states that some claims would survive regardless of the motion’s outcome.

California privacy claim

Plaintiffs brought a claim under section 631 of the California Invasion of Privacy Act. The court explained that the claim required allegations of simultaneous interception of communications. Plaintiffs alleged that Google intercepted data in transit and referred to an “open line of communication” and “real-time ad bidding.”

The court found those allegations insufficient. The complaint did not specifically describe how Google secretly intercepted the data in real time. When plaintiffs described the data-collection process, they alleged that Google first logged the data and later transmitted a second copy to itself. The court held that this described recording followed by transmission, not simultaneous interception, and that repeatedly using the word “intercepted” could not substitute for specific supporting facts. The court therefore concluded that the amended complaint did not plausibly state a section 631 claim.

Contract and quasi-contract claims

Plaintiffs also alleged that Google’s Web and App Activity settings page created a unilateral contract. They argued that Google promised to stop collecting users’ data if users turned off Web and App Activity by clicking a settings button.

The court rejected that theory. It explained that a unilateral contract requires a promise exchanged for a requested act or forbearance—an action or decision not to act that serves as consideration. Google did not ask users to turn off Web and App Activity or bargain for that action. The court also held that changing account settings did not itself create a contract. It had previously determined that the Web and App Activity Help Page was not a contract, and the settings page’s similar explanatory language did not change that result.

Plaintiffs alternatively pleaded a quasi-contract claim. The court held that this theory was meritless because Google’s Terms of Service governed the subject matter—Google’s services. The court stated that privacy was part of that subject matter and that treating it otherwise would turn every setting or instruction into a quasi-contract claim.

Surreply and disposition

Plaintiffs moved to file a surreply addressing Google’s references to alleged bad-faith litigation. The court denied that motion. Although the court said plaintiffs’ privacy claims lacked factual support, it also stated that the record did not show improper litigation conduct and that the legal issues were complicated.

Judge Richard Seeborg granted Google’s motion to dismiss. The court stated that plaintiffs had received several opportunities to amend and had not successfully done so, so further leave to amend was not warranted. The opinion does not state that the motion was granted as to every claim in the case; it expressly says that the motion did not seek dismissal of all claims.