Tanner Herzman, individually and on behalf of all others similarly situated v. Smile Brands Inc. d/b/a Bright Now! Dental & Orthodontics

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TANNER HERZMAN, individually and Case No.: 25-cv-03400-H-BLM on behalf of all others similarly situated, 12 ORDER GRANTING DEFENDANT’S Plaintiff, 13 MOTION TO DISMISS v. COMPLAINT WITH LEAVE TO 14 AMEND SMILE BRANDS INC. d/b/a BRIGHT 15 NOW! DENTAL & ORTHODONTICS, [Doc. No. 8.] 16 Defendant. 17 18 On February 16, 2026, Defendant Smile Brands Inc. filed a motion to dismiss 19 Plaintiff Tanner Herzman’s complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) 20 for lack of jurisdiction and pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure 21 to state a claim. (Doc. No. 8.) On March 16, 2026, Plaintiff filed a response in opposition 22 to Defendant’s motion. (Doc. No. 9.) On April 6, 2026, Defendant filed a reply. (Doc. 23 No. 10.) 24 A hearing on Defendant’s motion to dismiss is currently scheduled for Monday, June 25 1, 2026 at 10:30 a.m. The Court, pursuant to its discretion under Civil Local Rule 7.1(d)(1), 26 determines the matter is appropriate for resolution without oral argument, submits the 27 motion on the parties’ papers, and vacates the hearing. For the reasons below, the Court 28 grants Defendant’s motion to dismiss with leave to amend. 1 Background 2 The following background is based on the allegations in Plaintiff’s complaint. 3 Defendant is one of the largest providers of dental support services in the world, including 4 general dentistry, cosmetic dentistry, specialty dentistry, dental implants, and clear 5 aligners. (Doc. No. 1, Compl. ¶ 2.) Plaintiff alleges that on or about October 2024, he 6 made an appointment using Defendant’s website for “dental services” at Defendant’s 7 Bright Now location in Oceanside, California. (Id. ¶ 10.) Plaintiff states in the complaint 8 that “[t]he specific dental services scheduled by Plaintiff have been intentionally omitted 9 [from the complaint] to protect his privacy. (Id. at 3 n.5.) 10 Plaintiff alleges that, unbeknownst to him, Defendant then disclosed his “protected 11 health information” (PHI) – “including the specific details about his dental appointments” 12 – to Google for targeted advertising purposes. (Id. ¶ 11.) Plaintiff also alleges that 13 Defendant intercepted and disclosed to Google “personally identifiable information” (PII) 14 sufficient to identify Plaintiff as the precise individual booking dental appointments. (Id.) 15 Plaintiff further alleges that, after booking appointments on Defendant’s website, he began 16 receiving targeted advertisements for similar products and services. (Id. ¶ 12.) Plaintiff 17 alleges that he would not have made an appointment on Defendant’s website if he knew 18 Defendant was sharing his PHI with unknown third parties. (Id.) 19 On December 3, 2025, Plaintiff filed a class action complaint against Defendant, 20 alleging claims for: (1) violation of the Electronic Communications Privacy Act (“ECPA”), 21 18 U.S.C. § 2511(1) et seq.; (2) violation of California’s Invasion of Privacy Act (“CIPA”), 22 Cal. Penal Code § 631(a); (3) violation of CIPA, Cal. Penal Code § 632; and (4) invasion 23 of privacy under California’s constitution. (See id. ¶¶ 117–76.) By the present motion, 24 Defendant moves to dismiss the complaint pursuant to Federal Rule of Civil Procedure 25 12(b)(1) for lack of subject matter jurisdiction and pursuant to Federal Rule of Civil 26 Procedure 12(b)(6) for failure to state a claim. (Doc. No. 8.) 27 / / / 28 / / / 1 Discussion 2 Defendant moves pursuant to Federal Rule of Civil Procedure 12(b)(1) to dismiss 3 Plaintiff’s complaint for lack of subject matter jurisdiction. (Doc. No. 8 at 4–9.) 4 Specifically, Defendant argues that Plaintiff lacks standing to bring his claims because he 5 lacks an injury in fact and has failed to plausibly allege a fairly traceable injury. (See id.) 6 I. Legal Standards for a Rule 12(b)(1) Motion to Dismiss 7 Federal Rule of Civil Procedure 12(b)(1) authorizes a court to dismiss claims for 8 lack of subject matter jurisdiction. “Rule 12(b)(1) jurisdictional attacks can be either facial 9 or factual.” White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). “In a facial attack, the 10 challenger asserts that the allegations contained in a complaint are insufficient on their face 11 to invoke federal jurisdiction. By contrast, in a factual attack, the challenger disputes the 12 truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.” 13 Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). 14 Here, Defendant’s Rule 12(b)(1) motion focuses solely on the allegations in 15 Plaintiff’s complaint, and, thus, Defendant makes a facial attack under Rule 12(b)(1). (See 16 Doc. No. 8 at 4–9.) “In deciding a Rule 12(b)(1) facial attack motion, a court must assume 17 the facts alleged in the complaint to be true and construe them in the light most favorable 18 to the nonmoving party.” Strojnik v. Kapalua Land Co. Ltd., 379 F. Supp. 3d 1078, 1082 19 (D. Haw. 2019) (citing Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th 20 Cir. 2003)); see Savage v. Glendale Union High Sch., Dist. No. 205, Maricopa Cty., 343 21 F.3d 1036, 1039 (9th Cir. 2003); Rimac v. Duncan, 319 F. App’x 535, 536 (9th Cir. 2009). 22 But a court need not accept as true conclusory allegations. See Winsor v. Sequoia Benefits 23 & Ins. Servs., LLC, 62 F.4th 517, 525 (9th Cir. 2023). 24 II. Analysis 25 Defendant argues that Plaintiff lacks Article III standing to bring his claims. (Doc. 26 No. 8 at 4–9.) Article III of the Constitution “confines the federal judicial power to the 27 resolution of ‘Cases’ and ‘Controversies.’” TransUnion LLC v. Ramirez, 594 U.S. 413, 28 423 (2021). “For there to be a case or controversy under Article III, the plaintiff must have 1 a personal stake in the case—in other words, standing.” Id. 2 “[T]he ‘irreducible constitutional minimum’ of standing consists of three elements.” 3 Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016) (quoting Lujan v. Defenders of Wildlife, 4 504 U.S. 555, 560 (1992)). To establish standing, “a plaintiff must show (i) that he suffered 5 an injury in fact that is concrete, particularized, and actual or imminent; (ii) that the injury 6 was likely caused by the defendant; and (iii) that the injury would likely be redressed by 7 judicial relief.” TransUnion, 594 U.S. at 423 (citing Lujan, 504 U.S. at 560–61). 8 “The plaintiff, as the party invoking federal jurisdiction, bears the burden of 9 establishing these elements.” Spokeo, 578 U.S. at 338; accord Popa v. Microsoft Corp., 10 153 F.4th 784, 788 (9th Cir. 2025). Further, “‘[t]hat a suit may be a class action . . . adds 11 nothing to the question of standing, for even named plaintiffs who represent a class must 12 allege and show that they personally have been injured, not that injury has been suffered 13 by other, unidentified members of the class to which they belong.’” Spokeo, 578 U.S. at 14 338 n. 6 (quoting Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 40, n.20 15 (1976)); accord Lewis v. Casey, 518 U.S. 343, 357 (1996). 16 To establish the first element of standing, “injury in fact,” “a plaintiff must show 17 that he or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and 18 particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Spokeo, 578 19 U.S. at 339 (citing Lujan, 504 U.S. at 560). “A “concrete” injury must be ‘de facto’; that 20 is, it must actually exist.” Id. at 340. A concrete injury must be “real” and not “abstract.” 21 Id. 22 “[C]ertain harms readily qualify as concrete injuries under Article III. The most 23 obvious are traditional tangible harms, such as physical harms and monetary harms.” 24 TransUnion, 594 U.S. at 425. “Various intangible harms can also be concrete.” Id.; see 25 Spokeo, 578 U.S. at 340. “Chief among them are injuries with a close relationship to harms 26 traditionally recognized as providing a basis for lawsuits in American courts[,] . . . for 27 example, reputational harms, disclosure of private information, and intrusion upon 28 seclusion.” TransUnion, 594 U.S. at 425. 1 Importantly, “‘Article III standing requires a concrete injury even in the context of 2 a statutory violation.’” TransUnion, 594 U.S. at 426 (quoting Spokeo, 578 U.S. at 341). 3 The Supreme Court “has rejected the proposition that ‘a plaintiff automatically satisfies the 4 injury-in-fact requirement whenever a statute grants a person a statutory right and purports 5 to authorize that person to sue to vindicate that right.’” Id. A legislature’s creation of a 6 statutory prohibition or obligation and a cause of action does not relieve courts of their 7 responsibility to independently decide whether a plaintiff has suffered a concrete harm 8 under Article III. Id.; see also Popa, 153 F.4th at 792 (“TransUnion clearly cautions courts 9 not to treat an injury as concrete for Article III purposes based only on Congress’s say- 10 so.”). “[U]nder Article III, an injury in law is not an injury in fact.” TransUnion, 594 U.S. 11 at 427. 12 Here, Plaintiff acknowledges that in order to demonstrate a “concrete” injury in fact, 13 the injury suffered by Plaintiff must be one traditionally recognized by American courts. 14 (Doc. No. 9 at 5.) In an effort to satisfy this requirement, Plaintiff notes that violations of 15 the right to privacy have long been actionable at common law. (Id. at 5–6 (citing In re 16 Facebook, Inc. Internet Tracking Litig., 956 F.3d 589, 598 (9th Cir. 2020).) In a recent 17 case, Popa v. Microsoft, the Ninth Circuit explained what kind of harm is similar to the 18 types of harm recognized by common law privacy torts. 19 To show intrusion upon seclusion, a plaintiff must show an intentional interference with his interest in solitude or seclusion, either as to his person or 20 as to his private affairs or concerns, of a kind that would be highly offensive 21 to a reasonable man. Similarly, a claim for public disclosure of private facts requires that a defendant gives publicity to a matter that concerns the private 22 life of another, that the information is highly offensive to a reasonable person, 23 and that the information is not of legitimate public concern. 24 Popa, 153 F.4th at 791; see also, e.g., Khamooshi v. Politico LLC, No. 24-CV-07836-SK, 25 2025 WL 2822879, at *3 (N.D. Cal. Oct. 2, 2025) (applying Popa to an Article III standing 26 analysis of privacy claims brought under CIPA and the California Constitution). 27 Defendant argues that Plaintiff cannot show that the harm he allegedly suffered is 28 similar to the kind of privacy harms recognized by the Ninth Circuit in Popa because the 1 complaint does not contain any specific allegations explaining what information was 2 disclosed to Defendant, what information Defendant transmitted to Google, and how any 3 such information was linked to him as an identifiable individual. (Doc. No. 8 at 1–2, 6–8; 4 Doc. No. 10 at 2–3.) Defendant is correct. 5 Courts make their decisions regarding whether a plaintiff has stated a legally 6 protectable privacy interest based on the nature of the information at issue. Khamooshi v. 7 Politico LLC, 786 F. Supp. 3d 1174, 1178 (N.D. Cal. 2025); Mikulsky v. Noom, Inc., 682 8 F. Supp. 3d 855, 864 (S.D. Cal. 2023); Maghoney v. Dotdash Meredith, Inc., No. 24-CV- 9 2394-AJB-BJW, 2026 WL 497402, at *5 (S.D. Cal. Feb. 23, 2026). Thus, “[t]o survive a 10 motion to dismiss, a plaintiff must identify the specific personal information she disclosed 11 that implicates a protectable privacy interest.” Khamooshi, 786 F. Supp. 3d at 1179 12 (quoting Mikulsky, 682 F. Supp. 3d at 864); accord Maghoney, 2026 WL 497402, at *5; 13 see also Winsor, 62 F.4th at 523 (explaining that in order to adequately plead Article III 14 standing, a plaintiff must “‘clearly . . . allege[] facts demonstrating’ a concrete injury”). 15 Indeed, without such information, a court cannot assess whether a plaintiff has 16 demonstrated a sufficient “concrete” harm that is “similar to the ‘highly offensive’ 17 interferences or disclosures that were actionable at common law.” Popa, 153 F.4th at 791; 18 cf. I.C. v. Zynga, Inc., 600 F. Supp. 3d 1034, 1050 (N.D. Cal. 2022) (“[I]n data breach 19 cases, courts must examine the nature of the specific information at issue to determine 20 whether privacy interests were implicated at all.”). 21 Here, Plaintiff’s complaint is devoid of specific factual allegations explaining what 22 was actually disclosed to Defendant and what Defendant then allegedly disclosed to 23 Google. Plaintiff alleges in a conclusory manner that on or about October 2024, he made 24 an appointment using Defendant’s website for “dental services” at Defendant’s Bright Now 25 location in Oceanside, California. (Doc. No. 1, Compl. ¶ 10.) However, the complaint 26 contains no allegations explaining what information Plaintiff disclosed to Defendant when 27 he made this appointment. Indeed, in the complaint, Plaintiff concedes that this 28 information was “intentionally omitted.” (Id. at 3 n.5.) Without this information the Court 1 cannot assess whether the information disclosed cause a sufficient “concrete” harm that is 2 “similar to the ‘highly offensive’ interferences or disclosures that were actionable at 3 common law.” Popa, 153 F.4th at 791. 4 In the complaint, Plaintiff also alleges that, unbeknownst to him, Defendant then 5 disclosed his “protected health information” (PHI) – “including the specific details about 6 his dental appointments” – to Google for targeting advertising purposes. (Id. ¶ 11.) 7 Plaintiff also alleges that Defendant intercepted and disclosed to Google “personally 8 identifiable information” (PII) sufficient to identify Plaintiff as the precise individual 9 booking dental appointments. (Id.) But, again, Plaintiff does not specifically allege what 10 was disclosed to Google. Plaintiff’s bare allegations that “protected health information” 11 and “personally identifiable information” were disclosed to Google is nothing more than 12 legal conclusions cast in the form of factual allegations, and the Court need not accept them 13 as true in deciding this motion to dismiss. See Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009) 14 (“[T]he allegations are conclusory and not entitled to be assumed true.”); Roberts v. 15 Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987) (A court need not “assume the truth of 16 legal conclusions merely because they are cast in the form of factual allegations”). 17 In sum, Plaintiff has failed to adequately allege sufficient facts demonstrating that 18 he has suffered a “concrete” injury in fact. See, e.g., Popa, 153 F.4th at 791 (affirming 19 dismissal for lack of standing where the plaintiff failed to identify any “embarrassing, 20 invasive, or otherwise private information collected by [the defendant]”); Heiting v. FKA 21 Distrib. Co., No. 2:24-CV-07314-HDV-AGR, 2025 WL 736594, at *3 (C.D. Cal. Feb. 3, 22 2025) (dismissing CIPA claim for lack standing where plaintiff failed “to allege any basic 23 facts from which the Court could infer a concrete injury, like when and how many times 24 she visited the site, what information she provided, what information Defendant captured, 25 whether she was aware of Defendant’s tracking practices, or if she has any reason to believe 26 that she was indeed de-anonymized”). Because Plaintiff has failed to adequately allege 27 that he has Article III standing, the Court must dismiss his complaint for lack of subject 28 1 matter jurisdiction.! See Maya v. Centex Corp., 658 F.3d 1060, 1067 (9th Cir. 2011) 2 || (“[L]ack of Article III standing requires dismissal for lack of subject matter jurisdiction.”’). 3 Conclusion 4 For the reasons above, the Court grants Defendant’s motion to dismiss Plaintiffs 5 ||complaint for lack of subject matter jurisdiction. The Court’s dismissal of □□□□□□□□□□□ 6 || complaint is without prejudice and with leave to amend. See Telesaurus, 623 F.3d at 1003. 7 || Plaintiff may file a first amended complaint consistent with the analysis set forth in this 8 order within 30 days from the date this order is filed. 9 IT IS SO ORDERED. 10 || DATED: April 23, 2026 | | | | | MARILYN ®. HUFF, Distri ge 12 UNITED STATES DISTRICT COURT 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Because the Court dismisses Plaintiff's complaint for lack of subject matter 27 ||jurisdiction based on lack of Article III standing, the Court declines to address the other 28 05) dismissal raised in Defendant’s motion to dismiss. (See generally Doc. No. 8