1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 Case No.: 24-cv-01095-DMS-VET 11 GUILLERMO MATA on behalf of
himself and all others similarly situated, 12 ORDER DENYING DEFENDANT’S Plaintiff, MOTION TO DISMISS 13 v. PLAINTIFF’S COMPLAINT 14 ZILLOW GROUP, INC., 15 Defendant. 16 17 18 Pending before the Court is Defendant’s Motion to Dismiss Plaintiff’s Complaint. 19 (Defendant’s Motion (“Def.’s Mot.”), ECF No. 7). Plaintiff filed an Opposition, 20 (Plaintiff’s Opposition (“Opp’n”), ECF No. 10), and Defendant filed a Reply, (Defendant’s 21 Reply (“Reply”), ECF No. 11). For the following reasons, the Court DENIES Defendant’s 22 Motion. 23 I. BACKGROUND 24 Plaintiff Guillermo Mata brings this class action on behalf of himself, and all others 25 similarly situated. (Plaintiff’s Complaint (“Compl.”), ECF No. 1). Defendant Zillow 26 Group, Inc. (“Zillow”) is a corporation that operates Zillow.com, an online real estate 27 marketplace with residential properties for sale and lease. (Id. at 2). Plaintiff alleges that 28 1 listings on Defendant’s website include video tour walkthroughs and third-party tracking 2 technologies. (Id. at 5–6). According to Plaintiff, when registered users of Defendant’s 3 website watch video walkthroughs of available properties, third-party tracking 4 technologies obtain their viewing activity and personally identifiable information (“PII”) 5 and transmit that information to third-party tracking vendors without users’ consent. (Id. 6 at 2, 7). In his case, Plaintiff alleges Defendant shared his Zillow activity with Facebook 7 approximately twenty times. (Id. at 8). 8 Plaintiff’s class action asserts two claims: (1) violation of the Video Privacy 9 Protection Act (“VPPA”), 18 U.S.C. § 2710; and (2) violation of the California Invasion 10 of Privacy Act (“CIPA”), Cal. Penal Code § 631(a). (Id. at 11–16). Plaintiff’s proposed 11 nationwide class is defined as “[a]ll persons in the United States with a Zillow account and 12 who requested or viewed a video walkthrough tour on or through Zillow.com during the 13 applicable limitations periods.” (Id. at 9). Plaintiff also proposes an identical subclass for 14 persons in California. (Id. at 10). Plaintiff brings the first claim on behalf of the proposed 15 nationwide class and the second claim on behalf of the proposed subclass. (Id. at 11, 14). 16 II. LEGAL STANDARD 17 Under Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to dismiss 18 on the grounds that a complaint “fail[s] to state a claim upon which relief can be granted”. 19 Fed. R. Civ. P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) “tests the legal 20 sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). To survive 21 a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, 22 to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 23 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim 24 has facial plausibility when the plaintiff pleads factual content that allows the court to draw 25 the reasonable inference that the defendant is liable for the misconduct alleged.” Id. 26 “Determining whether a complaint states a plausible claim for relief will . . . be a context- 27 specific task that requires the reviewing court to draw on its judicial experience and 28 common sense.” Id. at 679. “Factual allegations must be enough to raise a right to relief 1 above the speculative level.” Twombly, 550 U.S. at 555. If Plaintiff “ha[s] not nudged 2 [his] claims across the line from conceivable to plausible,” the Complaint “must be 3 dismissed.” Id. at 570. 4 In reviewing the plausibility of a complaint on a motion to dismiss, a court must 5 “accept factual allegations in the complaint as true and construe the pleadings in the light 6 most favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 7 519 F.3d 1025, 1031 (9th Cir. 2008). But courts are not “required to accept as true 8 allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable 9 inferences.” In re Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (quoting 10 Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)). 11 When a court grants a motion to dismiss, it must then decide whether to grant leave 12 to amend. Leave to amend “shall be freely given when justice so requires”. Fed. R. Civ. 13 P. 15(a). “[T]his policy is to be applied with extreme liberality.” Morongo Band of Mission 14 Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990). A court should grant leave to amend 15 where there is no (1) “undue delay”, (2) “bad faith or dilatory motive”, (3) “undue prejudice 16 to the opposing party” if amendment were allowed, or (4) “futility” in allowing 17 amendment. Foman v. Davis, 371 U.S. 178, 182 (1962). Dismissal without leave to amend 18 is proper only if it is clear that “the complaint could not be saved by any amendment.” 19 Intri-Plex Techs. v. Crest Grp., Inc., 499 F.3d 1048, 1056 (9th Cir. 2007). 20 III. DISCUSSION 21 A. VPPA 22 Under the VPPA, “[a] video tape service provider who knowingly discloses, to any 23 person, personally identifiable information concerning any consumer of such provider 24 shall be liable to the aggrieved person”. 18 U.S.C. § 2710(b)(1). According to Defendant, 25 Plaintiff fails to state a claim because Defendant is not a “video tape service provider” and 26 Plaintiff is not a “consumer”. (Def.’s Mot. 10). Defendant further argues that the allegedly 27 disclosed information is not PII. (Id.). The Court will address these arguments below. 28 1 a. “Video Tape Service Provider” 2 Defendant contends that it is not a “video tape service provider” because it uses 3 video walkthroughs merely for advertising. (Id. at 13). Plaintiff responds that Defendant’s 4 business purpose is “showcas[ing] real estate” through audiovisual technology. (Opp’n 5 12). The Court agrees with Plaintiff. 6 A “video tape service provider” is “any person, engaged in the business . . . of rental, 7 sale, or delivery of prerecorded video cassette tapes or similar audio visual materials”. 18 8 U.S.C. § 2710(a)(4). Specifically, the parties dispute whether Defendant is “engaged in 9 the business . . . of . . . delivery of . . . audio visual materials” such as video walkthrough 10 tours. Id.; (Def.’s Mot. 12); (Opp’n 12). Given that “the term ‘business’ connotes ‘a 11 particular field of endeavor,’ several district courts in this Circuit have required that the 12 delivery of video content be ‘a focus of the defendant’s work’—i.e., that the defendant’s 13 product or service be ‘substantially involved in the conveyance of video content’ and 14 ‘significantly tailored to serve that purpose.’” Tawam v. Feld Ent. Inc., 684 F.Supp.3d 15 1056, 1060 (S.D. Cal. 2023) (quoting In re Vizio, Inc., Consumer Privacy Litig., 238 16 F.Supp.3d 1204, 1221 (C.D. Cal. 2017)) (collecting cases). Peripheral or passive 17 involvement in delivering audiovisual material—such as for advertising or marketing 18 purposes—is insufficient. Cantu v. Tapestry, Inc., 697 F.Supp.3d 989, 993 (S.D. Cal. 19 2023) (“Hosting and creating prerecorded videos for the purpose of marketing its products 20 does not suffice to plausibly allege Defendant is a video tape service provider.”). Rather, 21 “the plaintiff must sufficiently allege that the defendant’s ‘products are specifically tailored 22 to serve audiovisual material.’” Id. (quoting Carroll v. Gen. Mills, Inc., 2023 WL 4361093, 23 at *3 (C.D. Cal. June 26, 2023)). 24 The Court finds that Defendant’s “conveyance of video content” is “significantly 25 tailored” to its business purpose of facilitating real estate transactions. In re Vizio, 238 26 F.Supp.3d at 1221. Defendant “operates [a] real estate marketplace through its website, 27 Zillow.com, and mobile application.” (Compl. 5). Plaintiff plausibly alleges that, in 28 serving as a marketplace, “a key element of Defendant’s business model is to showcase 1 for-sale residential properties and properties available for lease on its website using . . . 2 video content.” (Id. at 2). In other words, Defendant’s audiovisual technology is what 3 attracts real estate agents and sellers to list their properties on Zillow.com in the first place. 4 The video walkthrough tours make Defendant’s website a better alternative to other 5 platforms since it “boosts the views” on listings and thereby helps sellers “find an interested 6 buyer more quickly”. (Id. at 5) (quoting Defendant’s website). Defendant’s business 7 would fail if agents and sellers did not elect to list their properties with Defendant. Thus, 8 attracting listings by offering the use of video walkthrough tours is essential to Defendant’s 9 business model. 10 Defendant’s citations are distinguishable insofar as they involve companies using 11 video content to market their own products. See, e.g., Rodriguez v. Hershey Co., 2023 WL 12 6798506, at *2 (S.D. Cal. Oct. 12, 2023) (“The allegation that Defendant uses videos to 13 market their product indicates that delivering audiovisual material is ancillary to 14 Defendant’s true business purposes.”); Hernandez v. Jostens, Inc., 2024 WL 1135165, at 15 *2 (C.D. Cal. Feb. 7, 2024) (“In Plaintiff’s own words, the videos are aimed toward the 16 sale of Defendant’s products and are a marketing tool to promote Defendant’s brand and 17 website, nothing more.”). In those cases, the companies’ primary business purposes were 18 to profit from the sale of their products. Videos advertising those products were merely a 19 means to achieve those purposes. See Sellers v. Bleacher Rep., Inc., 2023 WL 4850180, at 20 *6 (N.D. Cal. July 28, 2023) (distinguishing similar cases by finding that “these are 21 primarily retail companies that use videos incidentally to sell their retail goods – not 22 companies for whom the videos are the product”). Here, by contrast, Defendant uses video 23 content to make Zillow.com a superior platform for sellers to advertise their properties. 24 The facts of this case are thus more akin to In re Vizio, where the court held that Vizio was 25 a “video tape service provider” partially because it “enter[ed] into agreements with . . . 26 [video] content providers” such as Netflix and Hulu “to enable consumers to access their 27 programming on Vizio’s Smart TVs.” In re Vizio, 238 F.Supp.3d at 1222. In facilitating 28 this access, Vizio was able to “advertis[e] its Smart TVs as ‘a passport to a world of 1 entertainment, movies, TV shows and more,’ and charg[e] consumers a premium”. Id. 2 Similarly, Defendant—by offering agents and sellers advanced video technology—enters 3 into agreements with them to host their properties so that Defendant can advertise itself as 4 a real estate marketplace and obtain a commission on sales made. (Compl. 2, 5–6). 5 Ultimately, Plaintiff’s allegation that Defendant’s business model is tailored to delivery of 6 video content raises factual questions that ought not be decided at the motion to dismiss 7 stage. Sellers, 2023 WL 4850180, at *6. Given that this Court must construe the pleadings 8 in Plaintiff’s favor, the Court is satisfied that Plaintiff has plausibly alleged that Defendant 9 is a “video tape service provider” as the term is construed in the VPPA. Manzarek, 519 10 F.3d at 1031. 11 b. “Consumer” 12 The VPPA defines “consumer” as “any renter, purchaser, or subscriber of goods or 13 services from a video tape service provider”. 18 U.S.C. § 2710(a)(1). The parties agree 14 that Plaintiff is neither a “renter” nor “purchaser” of Defendant’s “services”. (Compl. 12); 15 (Def.’s Mot. 14). At issue instead is whether Plaintiff is a “subscriber” of Defendant’s 16 “services”. 17 The Ninth Circuit has yet to clarify who amounts to a “subscriber” under the VPPA. 18 However, “not everything that can conceivably be labeled a ‘subscription’ automatically 19 triggers the protections of the VPPA.” Tawam, 684 F.Supp.3d at 1061. Rather, courts 20 have “required the existence of a factual nexus or relationship between the subscription 21 provided by the defendant and the defendant’s allegedly actionable video content.” Id. 22 (internal citations omitted). According to the Eleventh Circuit, for instance, a subscription 23 “involves some type of commitment, relationship, or association (financial or otherwise) 24 between a person and an entity.” Ellis v. Cartoon Network, Inc., 803 F.3d 1251, 1256 (11th 25 Cir. 2015). Relevant factors include “payment, registration, commitment, delivery, . . . 26 and/or access to restricted content.” Id. In the First and Second Circuits, there is a 27 sufficient factual nexus when a person provides personal information. Yershov v. Gannett 28 Satellite Info. Network, Inc., 820 F.3d 482, 489 (1st Cir. 2016); Salazar v. Nat’l Basketball 1 Ass’n, 118 F.4th 533, 552–53 (2d Cir. 2024). All Circuits that have addressed this question 2 agree that “someone doesn’t have to spend money to be a VPPA ‘subscriber.’” Id. at 551 3 (agreeing with 11th and 1st Cirs. because to hold otherwise would make other terms in 4 “consumer” definition superfluous). 5 Plaintiff has adequately pled that he is a “subscriber” of Defendant’s website and 6 thus a “consumer” under the VPPA. As an initial matter, Plaintiff registered for 7 Defendant’s website and created a Zillow account. (Compl. 8). Although he did not pay 8 money for his account, he shared his personal information, including his email address and 9 Facebook ID. (Id.); Yershov, 820 F.3d at 487 (finding that plaintiff was subscriber because 10 he provided his Android ID and mobile device’s GPS location); Salazar, 118 F.4th at 552 11 (coming to same conclusion because plaintiff provided his email address, IP address, and 12 cookies associated with his device); see also Ellis, 803 F.3d at 1257 (finding that plaintiff 13 was not subscriber because he “did not provide any personal information to Cartoon 14 Network”). “[A]ccess was [thus] not free of . . . commitment”; “consideration [came] in 15 the form of [personal] information, which was of value to [Plaintiff].” Yershov, 820 F.3d 16 at 487. Plaintiff also installed Defendant’s mobile application on his phone and viewed 17 video content as a registered user, which “established a relationship with [Defendant] that 18 is materially different from what would have been the case had [Zillow] simply remained 19 one of millions of sites on the web that [Plaintiff] might have accessed through a web 20 browser”. Id.; (see Compl. 8) (“At all relevant times, Plaintiff has been one of Defendant’s 21 subscribers after registering his email with Defendant in order to create a Zillow account.”); 22 Tawam, 684 F.Supp.3d at 1062 (holding that there was insufficient nexus between 23 subscription and video content because plaintiffs “only signed up for the email mailing list 24 ‘after viewing the videos’”); Ellis, 803 F.3d at 1257 (plaintiff was not subscriber because 25 he “did not sign up for or establish an account with Cartoon Network” and “did not become 26 a registered user of Cartoon Network or the CN app”). Accordingly, “[t]his is sufficient at 27 the pleadings stage to satisfy the requirement that [Plaintiff] allege that he became a 28 ‘subscriber of’ [Defendant’s website].” Salazar, 118 F.4th at 553. 1 c. “Personally Identifiable Information” 2 Defendant argues that Plaintiff has not alleged the disclosure of PII because he has 3 not identified the specific videos he watched. (Def.’s Mot. 16). The Court disagrees. 4 Under the VPPA, PII “includes information which identifies a person as having requested 5 or obtained specific video materials or services from a video tape service provider”. 18 6 U.S.C. § 2710(a)(3). As construed by the Ninth Circuit, PII “means only that information 7 that would readily permit an ordinary person to identify a specific individual’s video- 8 watching behavior.” Eichenberger v. ESPN, Inc., 876 F.3d 979, 985 (9th Cir. 2017) 9 (internal quotation marks and citation omitted). Although Plaintiff does not list the names 10 of videos that were disclosed to third parties, Plaintiff explicitly alleges that Defendant 11 disclosed specific video information to third-party vendors. (Compl. 8) (“Whenever 12 Plaintiff requested or obtained such prerecorded videos on Defendant’s website, Defendant 13 disclosed to third-party tracking vendors, including Meta, records of which specific videos 14 Plaintiff requested as well as Plaintiff’s PII in the form of his email address (which includes 15 his last name), and Facebook ID.”) (emphasis added); (see also id.) (“Plaintiff’s Facebook 16 profile shows that Defendant has shared information with Facebook concerning Plaintiff’s 17 Zillow site activity, which includes specific records of the content Plaintiff viewed, on 18 approximately 20 occasions[.]”) (emphasis added). The Court is required to accept this 19 allegation as true.1 Iqbal, 556 U.S. at 678; Branca v. Bai Brands, LLC, 2019 WL 1082562, 20 at *3 (S.D. Cal. Mar. 7, 2019) (“While Branca’s assumption as to the type of malic acid 21 contained in Defendants’ Products ultimately may be incorrect, at the pleading stage, this 22 Court does not operate as a fact-finder, but, instead, must presume all facts . . . as true.”) 23 (internal quotation marks omitted). It is unnecessary for Plaintiff to name the exact videos 24 allegedly disclosed in his Complaint. Sellers, 2023 WL 4850180, at *3 (“Here, however, 25 plaintiff alleges that Bleacher Report uses the Facebook pixel to disclose ‘the content name 26 27 28 1 of the video the digital subscriber watched’, . . . [which] is sufficient at the pleadings 2 stage.”). Plaintiff has therefore met his burden. The Court DENIES Defendant’s Motion 3 to Dismiss the VPPA claim. 4 B. CIPA 5 CIPA punishes any person: 6 [1] who, by means of any machine, instrument, or contrivance, or in any other manner, intentionally taps, or makes any unauthorized connection, whether 7 physically, electrically, acoustically, inductively, or otherwise, with any telegraph 8 or telephone wire, line, cable, or instrument, including the wire, line, cable, or instrument of any internal telephonic communication system, or [2] who willfully 9 and without the consent of all parties to the communication, or in any unauthorized 10 manner, reads, or attempts to read, or to learn the contents or meaning of any message, report, or communication while the same is in transit or passing over any 11 wire, line, or cable, or is being sent from, or received at any place within this state; 12 or [3] who uses, or attempts to use, in any manner, or for any purpose, or to communicate in any way, any information so obtained, or [4] who aids, agrees with, 13 employs, or conspires with any person or persons to unlawfully do, or permit, or 14 cause to be done any of the acts or things mentioned above in this section[.] 15 Cal. Penal Code § 631(a). While Defendant argues that Plaintiff fails to state a claim under 16 any part of this provision, Plaintiff’s Complaint alleges violation of the second and fourth 17 clauses. Specifically, Plaintiff contends that Meta directly violated the second clause of § 18 631(a), and that Defendant may be held liable as an aider and abettor under the fourth 19 clause. (Compl. 15); (Opp’n 19–23). The Court will address only these arguments. 20 a. Meta’s Violation 21 To state a claim under the second clause of § 631(a), Plaintiff must allege facts 22 demonstrating that Meta “willfully and without the consent of all parties to the 23 communication, or in any unauthorized manner, read[ ], or attempt[ed] to read, or to learn 24 the contents or meaning of any message, report, or communication while the same [was] 25 in transit or passing over any wire, line, or cable, or [was] being sent from, or received at 26 any place within this state[.]” Cal. Penal Code § 631(a). According to Defendant, Plaintiff 27 fails to allege that Meta intercepted “contents” of a communication while it was in “transit”. 28 (Def.’s Mot. 20). Plaintiff responds that he has plausibly alleged both requirements. 1 i. “Contents” 2 “The analysis for a violation of CIPA is the same as that under the federal Wiretap 3 Act.” Underhill v. Kornblum, 2017 WL 2869734, at *6 (S.D. Cal. Mar. 16, 2017). When 4 examining the Wiretap Act, the Ninth Circuit has defined the term ‘contents’ as “the 5 intended message conveyed by [a] communication”. In re Zynga Priv. Litig., 750 F.3d 6 1098, 1106 (9th Cir. 2014). Excluded from this definition is “record information regarding 7 the characteristics of the message that is generated in the course of the communication.” 8 Id. Record information “includes the name, address, and subscriber number or identity of 9 a subscriber or customer.” Id. “Numerous federal courts have applied this definition in 10 this context.” Yoon v. Lululemon USA, Inc., 549 F.Supp.3d 1073, 1082 (C.D. Cal. 2021) 11 (collecting cases). 12 Here, Plaintiff alleges that Meta obtained information about “which specific videos 13 Plaintiff requested”. (Compl. 8). This information amounts to content because it 14 “concern[s] the substance” of Plaintiff’s communications with Defendant. In re Meta Pixel 15 Healthcare Litig., 647 F.Supp.3d 778, 796 (N.D. Cal. 2022). Construing Plaintiff’s 16 allegation in his favor, the Court reads the Complaint as alleging that Meta intercepted the 17 names of the videos Plaintiff watched, which divulges his “personal interests, queries, and 18 habits”. In re Facebook, Inc. Internet Tracking Litig., 956 F.3d 589, 605 (9th Cir. 2020). 19 Plaintiff buttresses this allegation with Meta’s own admission that its Meta Pixel may 20 receive individuals’ “interactions”, or “things that [they]’ve done on an app or website”. 21 (Compl. 8 n.4); Review your activity off Meta technologies, FACEBOOK, 22 https://www.facebook.com/help/2207256696182627. Interactions include “viewing 23 content”, “searching for an item”, “adding an item to a shopping cart”, and “making a 24 purchase”. Id. These examples illustrate that Meta, through its Pixel, has access to the 25 content of individuals’ searches on websites. Hammerling v. Google LLC, 615 F.Supp.3d 26 1069, 1093 (N.D. Cal. 2022) (noting that “a person’s personal search engine queries . . . 27 are contents”). Thus, Plaintiff has plausibly alleged that Meta has intercepted the content 28 of Plaintiff’s communications with Defendant. 1 ii. “In Transit” 2 To satisfy the “in transit” requirement, communications “must be acquired during 3 transmission, not while . . . in electronic storage.” Konop v. Hawaiian Airlines, Inc., 302 4 F.3d 868, 878 (9th Cir. 2002).2 While a plaintiff must do more than “merely restate[] the 5 pleading requirement of real time interception”, Esparza v. Gen Digital Inc., 2024 WL 6 655986, at *4 (C.D. Cal. Jan. 16, 2024), the standard is not overly burdensome. For 7 instance, “allegations that [communications] are intercepted in real time through the use of 8 computer code provides sufficient factual detail to support the ‘in transit’ requirement.” 9 Esparza v. UAG Escondido A1 Inc., 2024 WL 559241, at *3 (S.D. Cal. Feb. 12, 2024). 10 “[A] pleading standard to the contrary would require the CIPA plaintiff to engage in a one- 11 sided guessing game because the relevant information about data capture typically resides 12 uniquely in the custody and control of the CIPA defendant and its third-party recorder.” 13 D’Angelo v. Penny OpCo, LLC, 2023 WL 7006793, at *8 (S.D. Cal. Oct. 24, 2023). 14 Plaintiff pleads enough factual content for this Court to plausibly infer that Meta 15 intercepted his communications while “in transit”. Plaintiff alleges that Defendant 16 incorporated third-party tracking technologies into its website so that “whenever” Plaintiff 17 watched video content, Meta obtained access. (Compl. 8); UAG Escondido, 2024 WL 18 559241, at *3 (finding requirement satisfied because plaintiff alleged that technology code 19 was embedded in defendant’s website). Although Plaintiff did not use words like “real 20 time” and “simultaneously”, the Court finds the meaning of his allegation the same. The 21 term “whenever” is sufficient for the Court to infer that Plaintiff’s communications were 22 intercepted “in real time through the use of computer code”, which supports the “in transit” 23 requirement. Id. Plaintiff has thus alleged a direct violation of § 631(a) by Meta. 24 25 26
27 2 As noted above, CIPA violations are analyzed under the same framework as federal Wiretap Act 28 1 b. Defendant’s Aiding and Abetting 2 The fourth clause of § 631(a) requires Plaintiff to allege facts that Defendant 3 “aid[ed], agree[d] with, employ[ed], or conspire[ed] with [Meta] to unlawfully do, or 4 permit, or cause to be done any of the acts or things mentioned above”. Cal. Penal Code § 5 631(a). Defendant argues that Plaintiff has made only conclusory allegations.3 (Def.’s 6 Mot. 23). The Court disagrees. 7 Because the statute does not define the terms in the fourth clause of § 631(a), this 8 Court may look to “the common law definition of aiding and abetting.” UAG Escondido, 9 2024 WL 559241, at *6 (quoting Fiol v. Doellstedt, 50 Cal.App.4th 1318, 1325 (1996)); 10 Twitter, Inc. v. Taamneh, 598 U.S. 471, 484 (2023) (stating that “terms like ‘aids and abets’ 11 are familiar to the common law” and that “such common-law terms bring the old soil with 12 them”) (internal quotation marks, citation, and alteration omitted); Valenzuela v. Kroger 13 Co., 2024 WL 1336959, at *4 (C.D. Cal. Mar. 28, 2024) (“In the absence of an explicit 14 statutory scienter requirement, in California civil actions, the common law definition 15 applies.”). Under the common law, a person is an aider and abettor if they “(a) know[ ] the 16 other’s conduct constitute[s] a breach of duty and give[ ] substantial assistance or 17 encouragement to the other to so act or (b) give[ ] substantial assistance to the other in 18 accomplishing a tortious result and the person’s own conduct, separately considered, 19 constitutes a breach of duty to the third person.” UAG Escondido, 2024 WL 559241, at *6 20 (quoting Saunders v. Superior Court, 27 Cal.App.4th 832, 845 (1994)). 21 “Here, Plaintiff asserts [sufficient] facts to support the substantial assistance prong 22 of his aiding and abetting claim by alleging that Defendant embedded [third-party tracking 23 technologies] into its website.” Id.; Rodriguez v. Ford Motor Co., 722 F.Supp.3d 1104, 24 1124 (S.D. Cal. 2024) (“Here, Plaintiff asserts facts to support the substantial assistance 25 26 27 3 The Court will not further address Defendant’s argument that Plaintiff fails to state a claim under the fourth clause because he has not alleged a predicate violation by Meta. (Def.’s Mot. 22–23). The Court 28 1 prong of a common law aiding and abetting claim by alleging that Defendant plugged 2 LivePerson’s Application Programming Interface into its website.”); (Compl. 6, 8). As for 3 the knowledge prong, Plaintiff alleges that Defendant knowingly “programmed such third- 4 party tracking technology into its website for advertising purposes and to increase its 5 profits.” (Id. at 7); (see also id.) (“Defendant knew that such tracking technology would 6 transmit site visitors’ activity, including records of which video tours they have watched, 7 as the entire purpose of implementing such technology is so that Defendant can target 8 advertisements or send marketing emails through the technology’s third-party providers.”). 9 Similar allegations have been enough for sister courts in this Circuit. See, e.g., Heiting v. 10 Taro Pharms. USA, Inc., 2024 WL 3738055, at *6 (C.D. Cal. July 31, 2024) (“These 11 allegations explain that Defendant, itself, embeds the allegedly violative Genesys software, 12 that Defendant knows that Genesys software intercepts and collects consumer 13 communications without their knowledge or consent, and that Defendant benefits from 14 Genesys’s software. The SAC thus supports a plausible inference that Defendant knew 15 that Genesys’s software breached a duty to Plaintiff and that Defendant substantially 16 assisted that breach by embedding the software.”); Toy v. Life Line Screening of Am. Ltd., 17 2024 WL 1701263, at *1 (N.D. Cal. Mar. 19, 2024) (“Life Line allegedly purposely 18 installed these tracking technologies to optimize its advertising and marketing . . . These 19 allegations plausibly plead that Life Line ‘aid[ed], agree[d] with, employ[ed], or 20 conspire[d] with’ Facebook and/or Google to intercept Toy’s information.”); St. Aubin v. 21 Carbon Health Techs., Inc., 2024 WL 4369675, at *8 (N.D. Cal. Oct. 1, 2024) (applying 22 different standard but finding similar allegations as “sufficient to show that Carbon Health 23 aided, agreed with, employed, or conspired with Facebook”). The Court joins this line of 24 cases. As such, the Court DENIES Defendant’s Motion to Dismiss Plaintiff’s CIPA claim. 25 C. Fraudulent Concealment and Tolling 26 Plaintiff alleges that the “applicable statutes of limitations are tolled by virtue of 27 Defendant’s knowing and active concealment” of its violations. (Compl. 11). Defendant 28 argues Plaintiff has failed to plead these allegations with particularity, as is required for 1 || fraud claims. (Def.’s Mot. 24). Considering Ninth Circuit precedent, the Court will reserve 2 ||ruling on these issues until later because the test for equitable tolling is “fact-intensive”’ 3 |}and “more appropriately applied at the summary judgment or trial stage of litigation.” 4 || Cervantes v. City of San Diego, 5 F.3d 1273, 1276 (9th Cir. 1993); see also Emrich v. 5 || Touche Ross & Co., 846 F.2d 1190, 1199 (9th Cir. 1988) (“To decide these equitable tolling 6 |/issues in the first instance, however, the district court would have had to resolve certain 7 ||disputed factual matters.”).4 “At a minimum, determining the applicability of equitable 8 ||tolling necessitates resort to the specific circumstances of the prior claim[s]: parties 9 || involved, issues raised, evidence considered, and discovery conducted.” Cervantes, 5 F.3d 10 |] at 1276 (emphasis in original). Therefore, the Court will DENY Defendant’s request to 11 dismiss Plaintiffs tolling claim at this stage. 12 IV. CONCLUSION AND ORDER 13 For the foregoing reasons, the Court DENIES Defendant’s Motion to Dismiss 14 || Plaintiff's Complaint. 15 IT IS SO ORDERED. 16 Dated: December 18, 2024 17 Hon. Dana M. Sabraw, Chief Judge 18 United States District Court 19 20 21 22 || 23 Defendant relies on Hargreaves to support its argument that fraud claims must be pled with particularity. (Def.’s Mot. 24); (Reply 11). The court in Hargreaves acknowledged Ninth Circuit precedent but stated that sister district courts have ruled on equitable tolling allegations at the motion to dismiss stage for Truth 25 Lending Act (“TILA”) claims specifically. Hargreaves v. Saxon Mortg. Servs., Inc., 2009 WL 10673987, at *2 (C.D. Cal. Nov. 17, 2009) (“While the issue of equitable tolling is not generally amenable 26 || to resolution on a Rule 12(b)(6) motion because it often depends on matter outside the pleadings, several district courts in the Ninth Circuit have found that equitable tolling of a TILA claim requires a showing 27 || of fraudulent concealment or active conduct by the defendant in delaying the filing of the □□□□□□□□□□□ 28 claim.”) (internal quotation marks and citations omitted). Because a TILA claim is not at issue here, the Court does not find Hargreaves on point. 1A