Divino Group LLC v. Google LLC

Background

The plaintiffs sought reconsideration of the portion of the Court’s September 30, 2022 order that dismissed, without leave to amend, their claims under the California Unruh Act and California Unfair Competition Law. The earlier order held that those claims were barred by Section 230(c)(1) of the Communications Decency Act, a federal law that generally prevents treating an interactive computer service as the publisher or speaker of information supplied by another content provider.

The plaintiffs argued that a Fourth Circuit decision, Henderson v. The Source for Public Data, L.P., represented a change in the law. They maintained that their claims concerned the defendants’ decisions to remove, restrict, or demonetize videos and did not seek to hold the defendants responsible for publishing improper content. The defendants opposed reconsideration.

The plaintiffs also requested entry of final judgment under Federal Rule of Civil Procedure 54(b). That rule can allow an immediate appeal of fewer than all claims in a case, but only when the court determines there is no just reason to delay the appeal.

Motion for Reconsideration

Under the applicable local rule, reconsideration of an interlocutory order requires a material difference in fact or law, newly emerged material facts or a change in law, or a manifest failure to consider material facts or dispositive legal arguments. The court described reconsideration as an extraordinary remedy.

The court held that Henderson did not warrant reconsideration. Henderson involved job seekers’ claims under the federal Fair Credit Reporting Act against defendants who collected information, created a database, and sold access to it. The Fourth Circuit concluded that some claims did not treat the defendants as publishers because they involved providing information to the job seekers themselves, failing to obtain information from third parties, or failing to maintain procedures for accuracy. It also concluded that other claims did not receive Section 230 protection because the defendants had materially changed the records’ content.

The court found no comparable facts here. This case concerned the defendants’ decisions about plaintiffs’ videos, and Henderson expressly did not decide whether Section 230(c)(1) applies to a claim based on a decision not to publish. The court also noted that Henderson was not binding on it and that its narrow interpretation of Section 230 appeared inconsistent with broader Ninth Circuit decisions. The motion for reconsideration was denied.

Motion for Entry of Judgment

The court agreed that its September 30, 2022 order was a final disposition of the plaintiffs’ Unruh Act and Unfair Competition Law claims. However, it found that the plaintiffs had not shown that there was no just reason to delay entry of judgment under Rule 54(b).

The court considered the case’s ongoing status, including a pending motion to dismiss the remaining claim for breach of the implied covenant of good faith and fair dealing. It also noted that the parties had requested or stipulated to several significant extensions. Because the claims were based on essentially the same facts, and because Section 230 had been asserted as a defense to all of the plaintiffs’ claims, an immediate appeal could require the appellate court to address related issues more than once. The motion for entry of judgment was denied.

Disposition

The court denied the plaintiffs’ motion for reconsideration and denied their motion for entry of judgment. The court expressed no opinion on how the pending motion to dismiss the remaining claim would be resolved.