Hammerling v. Google LLC

Background

Marie Hammerling and Kay Jackson filed an amended complaint against Google LLC. They alleged that Google used their Android smartphones to collect information about their activity on third-party apps, including app visits, products viewed, and services used. They claimed that this information could reveal personal details, such as financial accounts, interests, physical activity, and religious beliefs.

The amended complaint asserted ten claims: common-law intrusion upon seclusion; invasion of privacy under the California Constitution; violation of California Civil Code section 1709; violations of the fraud, unlawful, and unfair prongs of California’s Unfair Competition Law; violation of the California Consumers Legal Remedies Act; breach of contract; breach of implied contract; unjust enrichment; declaratory relief; and violation of California’s Invasion of Privacy Act.

The court had dismissed all of these claims in an earlier order but allowed the plaintiffs to amend. Google again moved to dismiss, arguing that the amended complaint still failed to state legally sufficient claims.

Rulings on preliminary matters and consent

Under Federal Rule of Civil Procedure 12(b)(6), the court may dismiss a complaint for failure to state a legally sufficient claim. Fraud claims also must satisfy Rule 9(b), which requires the complaint to identify the specific circumstances of the alleged fraud, including the who, what, when, where, and how.

The court incorporated by reference Google’s Privacy Policies and Activity Controls webpages because the amended complaint relied on and quoted those materials. It took judicial notice of a Google Help Center webpage but declined to take judicial notice of privacy and data-disclosure documents from the Wish and Groupon apps because those documents might not have been the disclosures shown to Hammerling when she used those apps.

The court rejected Google’s argument that the complaint itself established Hammerling’s consent to the data collection. Google submitted screenshots of disclosures from September 2022, but the court found no basis to conclude that the same disclosures existed when Hammerling enabled the relevant setting or when Google collected her data from 2019 through 2021. Whether Hammerling saw the relevant disclosure, and what it said at the time, presented factual questions that could not be resolved on this motion to dismiss.

Fraud-related claims

The court dismissed the claims under the California Consumers Legal Remedies Act, the fraud prong of the Unfair Competition Law, and California Civil Code section 1709. For claims based on alleged misrepresentations, the plaintiffs had to allege that they relied on a misrepresentation and were injured as a result. The amended complaint alleged that Hammerling read Google’s Privacy Policy, but it did not say when she read it or that she bought her smartphone in reliance on the alleged statements. The complaint also did not adequately allege reliance based on continuing to use the phones after viewing Google’s settings pages.

The omission theory also failed. The court had previously held that the plaintiffs needed to allege that the omitted information was central to the smartphone’s function in order to show that Google had a duty to disclose it. The amended allegations did not cure that deficiency. The allegations also did not describe with the particularity required by Rule 9(b) when Hammerling encountered the alleged partial omissions or what she saw.

The California Consumers Legal Remedies Act claim independently failed because the plaintiffs did not allege that Google manufactured their smartphones or received part of the proceeds from their sale. Alleging that Google profited from ownership or continued use of Android devices was not enough.

Privacy claims

The court dismissed the common-law privacy claim, the California constitutional privacy claim, and the California Invasion of Privacy Act claim. For the common-law and constitutional claims, the plaintiffs alleged a reasonable expectation of privacy but did not plausibly allege that Google’s conduct was a highly offensive intrusion. The court concluded that the alleged information about app downloads and the specific examples—viewing a foot massager, women’s slippers, meal subscriptions, coconut oil, and using a photo editor—were not sufficiently personal or harmful under the court’s analysis. It characterized the examples as routine commercial behavior and noted that Google disclosed collecting information about apps installed through the Google Play Store and activity involving third-party apps that use Google services.

The California Invasion of Privacy Act claim alleged that Google collected the contents of communications involving the third-party apps. The court held that the amended complaint cured the earlier problem concerning the meaning of “contents” by alleging particular activity within the apps, such as products searched for and services used. But the claim still failed because the plaintiffs did not plausibly allege that Google intercepted the information while it was “in transit.” Allegations that Google collected “real-time data” did not establish that Google intercepted the data at the time it was transmitted. The claim also failed because the amended complaint did not allege that the interception occurred in California.

Contract and related claims

The court dismissed the breach-of-contract, implied-contract, and unjust-enrichment claims. The plaintiffs did not identify an express promise in Google’s Privacy Policy or Activity Controls that Google would collect data only from Google apps or third-party apps using Google services. General statements about explaining data collection and giving users privacy controls were not express promises that Google had breached.

The implied-contract claim failed because an express contract—the Privacy Policy, including the incorporated Activity Controls—covered the scope and purpose of data collection. The unjust-enrichment claim failed because it depended on an actionable misrepresentation or omission, and the court had dismissed the fraud-based theories.

Remaining Unfair Competition Law and declaratory-relief claims

The court dismissed the remaining Unfair Competition Law claims. The unlawful-prong claim failed because the underlying predicate claims failed. The unfair-prong claim also failed because the plaintiffs based it on the same conduct and did not have a surviving privacy claim supporting it.

The court dismissed the declaratory-relief claim because dismissal of the underlying claims left no basis for declaratory relief.

Disposition

The court granted Google’s motion to dismiss as to all claims. Because the plaintiffs had failed to cure the deficiencies after being given an opportunity to amend, the court dismissed their claims with prejudice.