1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JANE DOE I and JANE DOE II, on Case No.: 23-cv-01424-AJB-BLM behalf of themselves and all others 12 similarly situated, ORDER GRANTING DEFENDANT’S 13 Plaintiffs, MOTION TO DISMISS (Doc. No. 21) 14 v. 15 DAVITA INC., Defendant. 16
17 Presently pending before the Court is Defendant Davita Inc.’s motion to dismiss 18 Plaintiffs Jane Doe I and Jane Doe II’s First Amended Class Action Complaint (“FAC”) 19 pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. No. 21.) Plaintiffs filed an 20 opposition to the motion to dismiss, (Doc. No. 25), to which Defendant replied, (Doc. No. 21 26). The parties have also each respectively filed a notice of supplemental authority. (Doc. 22 Nos. 28, 29.) Pursuant to Civil Local Rule 7.1.d.1, the Court finds the instant matter 23 suitable for determination on the papers and without oral argument. For the reasons stated 24 herein, the Court GRANTS the motion to dismiss Plaintiffs’ FAC. 25 /// 26 /// 27 28 1 I. BACKGROUND 2 Plaintiffs are California residents and have been patients of DaVita since 3 approximately 2022. (FAC, Doc. No. 18, ¶¶ 23–24.) Plaintiffs began using Defendant’s 4 website, app, and/or any corresponding patient portals it made available to its patients 5 (collectively, the “Online Platforms”) in conjunction with and to obtain the medical 6 treatments and services they respectively received from Defendant. (Id.) Plaintiffs allege 7 Defendant purposely installed tracking technologies on its Online Platforms, including but 8 not limited to Facebook Pixel, Facebook SDK, Facebook Conversions API, Google 9 Analytics, Google Tag Manager, DoubleClick, and related tools (collectively, “Tracking 10 Technologies”), and programmed specific webpages to surreptitiously share its users’ 11 personally identifiable information (“PII”) and protected health information (“PHI”) 12 (collectively, “Private Information”). (Id. ¶¶ 2, 40.) The FAC further alleges these Tracking 13 Technologies “followed, recorded, and disseminated patients’ information as they 14 navigated and communicated with DaVita via the Online Platforms, simultaneously 15 transmitting the substance of those communications to unintended third parties.” (Id. ¶ 41.) 16 Additionally, Plaintiffs contend the information disseminated by the Tracking 17 Technologies constitutes private information, including medical information requested or 18 viewed by patients, the title of any buttons they clicked, the exact phrases users typed into 19 text boxes, selections they made from drop-down menus or while using filtering tools, and 20 other sensitive and confidential information. (Id. ¶ 42.) 21 The FAC alleges that because the information that Facebook received from the 22 Tracking Tools was linked and connected to patients’ Facebook profiles, the information 23 collected and disclosed by the Tracking Tools is not anonymous. (Id. ¶¶ 44–45.) Similarly, 24 Plaintiffs assert Google stores users’ logged-in identifier, which is associated with the data 25 26
27 1 The facts incorporated herein are taken from Plaintiff’s FAC and are construed as true for the limited 28 1 it collects from the user’s browsing activities on that website and uses this data for serving 2 personalized ads. (Id. ¶ 46.) 3 Plaintiffs bring seven claims for violations of (1) the California Invasion of Privacy 4 Act (“CIPA”), Cal. Pen. Code § 631(a); (2) the California Confidentiality of Medical 5 Information Act (“CMIA”), Cal. Civ. Code § 56, et seq.; (3) the Unfair Competition Law 6 (“UCL”), Cal. Bus. & Prof. Code § 17200, et seq.; (4) Invasion of Privacy under the 7 California Constitution; (5) invasion of privacy – intrusion upon seclusion; (6) invasion of 8 privacy – publication of private facts; and (7) breach of confidence. (See generally FAC.) 9 Defendant moves to dismiss all seven claims pursuant to Federal Rule of Civil Procedure 10 12(b)(6). 11 II. LEGAL STANDARD 12 A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the pleadings 13 and allows a court to dismiss a complaint upon a finding that the plaintiff has failed to state 14 a claim upon which relief may be granted. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 15 2001). The court may dismiss a complaint as a matter of law for: “(1) lack of cognizable 16 legal theory or (2) insufficient facts under a cognizable legal claim.” SmileCare Dental 17 Grp. v. Delta Dental Plan of Cal., 88 F.3d 780, 783 (9th Cir. 1996) (citation omitted). 18 However, a complaint survives a motion to dismiss if it contains “enough facts to state a 19 claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 20 (2007). 21 Notwithstanding this deference, the reviewing court need not accept legal 22 conclusions as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). It is also improper for the 23 court to assume “the [plaintiff] can prove facts that [he or she] has not alleged . . . .” 24 Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 25 519, 526 (1983). On the other hand, “[w]hen there are well-pleaded factual allegations, a 26 court should assume their veracity and then determine whether they plausibly give rise to 27 an entitlement to relief.” Iqbal, 556 U.S. at 679. The court only reviews the contents of the 28 complaint, accepting all factual allegations as true, and drawing all reasonable inferences 1 in favor of the nonmoving party. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002). 2 III. DISCUSSION 3 Underlying each of Plaintiffs’ claims is the overarching theory that Defendant 4 collected patients’ personal and sensitive medical information on the Online Platforms and 5 that this information was improperly shared with the Tracking Technologies without 6 patients’ consent. Defendant moves to dismiss Plaintiffs’ FAC on the basis that Plaintiffs 7 ultimately fail to allege any disclosure of their PHI. (Doc. No. 21 at 14.) Defendant further 8 moves to dismiss each of Plaintiffs’ claims for failure to state a claim. (See generally id.) 9 The Court only addresses the arguments necessary to resolve the motion. 10 Plaintiffs assert that because DaVita’s Online Platform users were patients seeking 11 dialysis treatment, “[b]y definition, this not only reveals the type of medical treatment they 12 sought and received, it also reveals that they have chronic kidney disease.” (Doc. No. 25 13 at 11.) Moreover, “Plaintiffs used the Website as patients, not members of the general 14 public, and the class is comprised of patients, not the general public at large . . . .” (Id. at 15 12.) 16 However, Plaintiffs allege in a conclusory manner that Defendant disclosed to Meta 17 their personal, confidential, and sensitive medical information; medical treatment; and 18 payment information. (FAC ¶¶ 138, 152.) These allegations are devoid of any facts 19 supporting their contention that these activities took place.
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JANE DOE I and JANE DOE II, on Case No.: 23-cv-01424-AJB-BLM behalf of themselves and all others 12 similarly situated, ORDER GRANTING DEFENDANT’S 13 Plaintiffs, MOTION TO DISMISS (Doc. No. 21) 14 v. 15 DAVITA INC., Defendant. 16
17 Presently pending before the Court is Defendant Davita Inc.’s motion to dismiss 18 Plaintiffs Jane Doe I and Jane Doe II’s First Amended Class Action Complaint (“FAC”) 19 pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. No. 21.) Plaintiffs filed an 20 opposition to the motion to dismiss, (Doc. No. 25), to which Defendant replied, (Doc. No. 21 26). The parties have also each respectively filed a notice of supplemental authority. (Doc. 22 Nos. 28, 29.) Pursuant to Civil Local Rule 7.1.d.1, the Court finds the instant matter 23 suitable for determination on the papers and without oral argument. For the reasons stated 24 herein, the Court GRANTS the motion to dismiss Plaintiffs’ FAC. 25 /// 26 /// 27 28 1 I. BACKGROUND 2 Plaintiffs are California residents and have been patients of DaVita since 3 approximately 2022. (FAC, Doc. No. 18, ¶¶ 23–24.) Plaintiffs began using Defendant’s 4 website, app, and/or any corresponding patient portals it made available to its patients 5 (collectively, the “Online Platforms”) in conjunction with and to obtain the medical 6 treatments and services they respectively received from Defendant. (Id.) Plaintiffs allege 7 Defendant purposely installed tracking technologies on its Online Platforms, including but 8 not limited to Facebook Pixel, Facebook SDK, Facebook Conversions API, Google 9 Analytics, Google Tag Manager, DoubleClick, and related tools (collectively, “Tracking 10 Technologies”), and programmed specific webpages to surreptitiously share its users’ 11 personally identifiable information (“PII”) and protected health information (“PHI”) 12 (collectively, “Private Information”). (Id. ¶¶ 2, 40.) The FAC further alleges these Tracking 13 Technologies “followed, recorded, and disseminated patients’ information as they 14 navigated and communicated with DaVita via the Online Platforms, simultaneously 15 transmitting the substance of those communications to unintended third parties.” (Id. ¶ 41.) 16 Additionally, Plaintiffs contend the information disseminated by the Tracking 17 Technologies constitutes private information, including medical information requested or 18 viewed by patients, the title of any buttons they clicked, the exact phrases users typed into 19 text boxes, selections they made from drop-down menus or while using filtering tools, and 20 other sensitive and confidential information. (Id. ¶ 42.) 21 The FAC alleges that because the information that Facebook received from the 22 Tracking Tools was linked and connected to patients’ Facebook profiles, the information 23 collected and disclosed by the Tracking Tools is not anonymous. (Id. ¶¶ 44–45.) Similarly, 24 Plaintiffs assert Google stores users’ logged-in identifier, which is associated with the data 25 26
27 1 The facts incorporated herein are taken from Plaintiff’s FAC and are construed as true for the limited 28 1 it collects from the user’s browsing activities on that website and uses this data for serving 2 personalized ads. (Id. ¶ 46.) 3 Plaintiffs bring seven claims for violations of (1) the California Invasion of Privacy 4 Act (“CIPA”), Cal. Pen. Code § 631(a); (2) the California Confidentiality of Medical 5 Information Act (“CMIA”), Cal. Civ. Code § 56, et seq.; (3) the Unfair Competition Law 6 (“UCL”), Cal. Bus. & Prof. Code § 17200, et seq.; (4) Invasion of Privacy under the 7 California Constitution; (5) invasion of privacy – intrusion upon seclusion; (6) invasion of 8 privacy – publication of private facts; and (7) breach of confidence. (See generally FAC.) 9 Defendant moves to dismiss all seven claims pursuant to Federal Rule of Civil Procedure 10 12(b)(6). 11 II. LEGAL STANDARD 12 A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the pleadings 13 and allows a court to dismiss a complaint upon a finding that the plaintiff has failed to state 14 a claim upon which relief may be granted. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 15 2001). The court may dismiss a complaint as a matter of law for: “(1) lack of cognizable 16 legal theory or (2) insufficient facts under a cognizable legal claim.” SmileCare Dental 17 Grp. v. Delta Dental Plan of Cal., 88 F.3d 780, 783 (9th Cir. 1996) (citation omitted). 18 However, a complaint survives a motion to dismiss if it contains “enough facts to state a 19 claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 20 (2007). 21 Notwithstanding this deference, the reviewing court need not accept legal 22 conclusions as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). It is also improper for the 23 court to assume “the [plaintiff] can prove facts that [he or she] has not alleged . . . .” 24 Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 25 519, 526 (1983). On the other hand, “[w]hen there are well-pleaded factual allegations, a 26 court should assume their veracity and then determine whether they plausibly give rise to 27 an entitlement to relief.” Iqbal, 556 U.S. at 679. The court only reviews the contents of the 28 complaint, accepting all factual allegations as true, and drawing all reasonable inferences 1 in favor of the nonmoving party. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002). 2 III. DISCUSSION 3 Underlying each of Plaintiffs’ claims is the overarching theory that Defendant 4 collected patients’ personal and sensitive medical information on the Online Platforms and 5 that this information was improperly shared with the Tracking Technologies without 6 patients’ consent. Defendant moves to dismiss Plaintiffs’ FAC on the basis that Plaintiffs 7 ultimately fail to allege any disclosure of their PHI. (Doc. No. 21 at 14.) Defendant further 8 moves to dismiss each of Plaintiffs’ claims for failure to state a claim. (See generally id.) 9 The Court only addresses the arguments necessary to resolve the motion. 10 Plaintiffs assert that because DaVita’s Online Platform users were patients seeking 11 dialysis treatment, “[b]y definition, this not only reveals the type of medical treatment they 12 sought and received, it also reveals that they have chronic kidney disease.” (Doc. No. 25 13 at 11.) Moreover, “Plaintiffs used the Website as patients, not members of the general 14 public, and the class is comprised of patients, not the general public at large . . . .” (Id. at 15 12.) 16 However, Plaintiffs allege in a conclusory manner that Defendant disclosed to Meta 17 their personal, confidential, and sensitive medical information; medical treatment; and 18 payment information. (FAC ¶¶ 138, 152.) These allegations are devoid of any facts 19 supporting their contention that these activities took place. For example, Plaintiff Doe I 20 merely states she “accessed and used [Defendant’s] Online Platforms on her phone and 21 desktop computer to submit a grievance to the Defendant about misdiagnosing her, to 22 research different types of dialysis, to watch a series of videos the Defendant requires in 23 order to receive treatment, to research recipes for her particular dialysis diet, and to locate 24 the facility she’d be going to for treatment.” (Id. ¶ 138.) Plaintiffs also do not explain what 25 specific information they provided to Defendant. Plaintiffs cannot maintain their theory of 26 the case absent this factual support. While Plaintiffs provide an example of a search by a 27 hypothetical patient, (FAC ¶¶ 71–88), they fail to state what information they each 28 provided to Defendant, via their browsing activity, that was subsequently disclosed to 1 || Meta. Cousin v. Sharp Healthcare (“Cousin I’), No.: 22-cv-2040-MMA (DDL), 2023 WL 2 4484441, at *3 (S.D. Cal. July 12, 2023); see B.K. v. Eisenhower Med. Ctr., No. EDCV 3 || 23-2092 JGB (KKx), 2024 WL 878100, at *4 (C.D. Cal. Feb. 29, 2024) (dismissing CMIA, 4 || UCL, and invasion of privacy claims for failure to allege “what, if any, medical information 5 ||or medical records were transmitted or disclosed’); Doe v. Amgen, Inc., No. 2:23-cv- 6 ||07448-MCS-SSC, 2024 WL 575248, at *2 (C.D. Cal. Jan. 29, 2024) (“It is not enough for 7 Plaintiff to plead conclusory allegations that Defendant violated her privacy without 8 ||offering any facts that her information was collected and then improperly disclosed to 9 || unauthorized third parties”); In re Meta Healthcare Pixel Litig., No. 22-cv-03580-WHO, 10 2024 WL 3338833, at *1 (N.D. Cal. Jan. 29, 2024 (denying motion to dismiss based in part 11 finding the plaintiffs plausibly pled their privacy-based claims, where “plaintiffs 12 |/identify the specific types of information they provided to their healthcare providers that 13 believe Meta collected without their consent[,]” including “the health conditions for 14 || which they sought treatment or services, as well as examples of their queries, appointment 15 |/requests, or other information and services which they communicated with their 16 || providers’’). 17 For these reasons, the Court DISMISSES all of Plaintiffs’ claims with leave to 18 amend. 19 CONCLUSION 20 Based on the foregoing, the Court GRANTS Defendant’s motion to dismiss WITH 21 || LEAVE TO AMEND. Should Plaintiffs desire to amend their complaint, they must file a 22 ||second amended complaint no later than May 9, 2024. Defendant must file a responsive 23 || pleading no later than May 23, 2024. 24 IT IS SO ORDERED. 25 Dated: April 24, 2024 © 26 Hon. Anthony J. attaglia 27 United States District Judge 28