Hart v. TWC Prod. & Tech. LLC

526 F.Supp.3d 592

Jon HART, Plaintiff,

v.TWC PRODUCT AND TECHNOLOGY LLC, Defendant.

Case No. 20-cv-03842-JST

United States District Court, N.D. California.

Signed March 17, 2021

Lucas Williams, Williams Environmental Law, Berkeley, CA, Oscar Monfort Price, IV, Pro Hac Vice, Price-Armstrong LLC, Nicholas William Armstrong, Price Armstrong, LLC, Birmingham, AL, for Plaintiff.

James Robert Asperger, Lauren Brooke Lindsay, William R. Sears, Stephen Andrew Broome, Quinn Emanuel Urquhart & Sullivan LLP, Los Angeles, CA, Josef Teboho Ansorge, Pro Hac Vice, Quinn Emanuel Urquhart Sullivan LLP, New York, NY, Kyle Kenneth Batter, Quinn Emanuel Urquhart Sullivan, Redwood Shores, CA, for Defendant.

ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS

Re: ECF No. 18

JON S. TIGAR, United States District Judge

Before the Court is Defendant TWC Product and Technology LLC's motion to dismiss. ECF No. 18. The Court will grant the motion in part and deny it in part.

I. BACKGROUND

Plaintiff Jon Hart brings this putative class action against Defendant TWC on behalf of "[a]ll persons and entities who reside in California who (1) downloaded the Weather Channel App and (2) Granted TWC access to the user's geolocation data before January 25, 2019." ECF No. 1 ¶ 12. "This case seeks to hold TWC accountable for its years-long practice of tracking and selling the physical locations of the users of its mobile weather application, without those users' permission." Id. ¶ 6. Hart alleges that:

Until recently, TWC never did anything at all to disclose to App users the specificity with which it tracked users' geolocation, that it maintained this data, or that it directly profited from App [users'] geolocation data by transmitting or selling that data to affiliates and third parties for advertising and marketing purposes. Instead, TWC told users that their data would only be used for the user's benefit to provide them with personalized local weather information. Nothing in the description of the App or prompts to allow geolocation tracking alerted users to the extent and purpose of the location tracking function of the App.

Id. ¶ 4. TWC "tracked users' locations at all times, day and night, 365 days a year," even when the users did not have the App open. Id. ¶¶ 5, 33. TWC has now changed its disclosures "[a]s a result of lawsuits and in an attempt to correct its past misrepresentations and deceptions." Id. ¶ 4.

The App "is available for download on Android and Apple devices" for free, although "an ‘ad-free’ version is offered for a small fee." Id. ¶ 22. The allegations are unclear as to which version of the App was downloaded and used by Hart. See id. ¶ 8 (alleging only that "Plaintiff Jon Hart ... downloaded the App"). The download process allegedly worked as follows:

Immediately upon opening the Weather Channel App for the first time, the app asked the user for permission to access the user's "location." Regardless of the device being used, this request did not inform the user that TWC would be tracking the users every move or that this information will be used for any purpose other than providing the user information about the weather. Specifically, the request to access the user's location on Apple devices simply stated that granting access will result in "personalized local weather data, alerts, and forecasts." The request on Android devices simply said "Allow The Weather Channel to access this device's location?" with the option to "Deny" or "Allow."

The consent process employed by the Weather Channel App made absolutely no reference to any additional information the user should read or review prior to providing consent to geolocation tracking. Nowhere in the consent process was the user confronted with the information that their minute-by-minute geolocation data will be broadly disseminated by TWC and that TWC would make millions disseminating users' geolocation data. Importantly, the consent process did not direct users to any "Privacy Policy" or "Privacy Settings", so users had no reason to search those voluminous documents for any vague discussions of geolocation data that might be buried within those documents.

The consent process did not involve disclosures that the user would be subjected to targeted advertisements based on their captured geolocation data that would be transferred to affiliates and third parties.

The consent process did not involve disclosing that, in addition to simply capturing users' geolocation data and transferring it, TWC would maintain that data for an indefinite period.

Id. ¶¶ 28-31 (paragraph numbers omitted).

The complaint asserts five claims: violation of the privacy rights contained in article I, section 1 of the California Constitution ; violation of the Consumer Legal Remedies Act, Cal. Civ. Code §§ 1750 et seq. ; violation of the California Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200 et seq. ; declaratory judgment pursuant to 28 U.S.C. § 2201 ; and unjust enrichment.

TWC seeks to dismiss the complaint in its entirety. ECF No. 18.

II. JURISDICTION

The parties do not dispute that the Court has jurisdiction under 28 U.S.C. § 1332(d)(2).

III. LEGAL STANDARD

A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a). Dismissal under Federal Rule of Civil Procedure 12(b)(6) "is appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory." Mendiondo v. Centinela Hosp. Med. Ctr. , 521 F.3d 1097, 1104 (9th Cir. 2008). A complaint need not contain detailed factual allegations, but facts pleaded by a plaintiff must be "enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quotation marks and citation omitted). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. In determining whether a plaintiff has met this standard, the Court must "accept all factual allegations in the complaint as true and construe the pleadings in the light most favorable" to the plaintiff. Knievel v. ESPN , 393 F.3d 1068, 1072 (9th Cir. 2005).

IV. DISCUSSION

A. Constitutional Privacy

1. Timeliness

The parties dispute whether a one- or two-year statute of limitations governs Plaintiffs' California constitutional privacy claim. This Court previously cited Johnson v. Harcourt, Brace, Jovanovich, Inc. , 43 Cal. App. 3d 880, 896, 118 Cal.Rptr. 370 (1974), as "equating invasion of privacy claims with defamation claims for purposes of statute of limitations," and concluded that a one-year statute of limitations governed invasion of privacy claims. Harris v. Wells Fargo Bank, N.A. , No. 12-cv-05629-JST, 2013 WL 1820003, at *13 (N.D. Cal. Apr. 30, 2013) (considering false light claim). In reaching that conclusion, the Court did not consider the change in California law that occurred in 2003. Having considered that statutory change, the Court agrees with Hart that a two-year statute of limitation applies. As explained by another court:

Prior to 2003, an action for tortious invasion of privacy was subject to a one-year statute of limitations in California. See Cal. Code Civ. Proc. § 340 (2002) ; Johnson v. Harcourt, Brace, Jovanovich, Inc. , 43 Cal. App. 3d 880, 895-96, 118 Cal.Rptr. 370 (1974). However, 2002's Senate Bill 688 amended Cal. Code Civ. Proc. § 340 and added a new section to provide for a two-year limitations period covering "[a]n action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another." Cal. Code Civ. Proc. § 335.1 ; see Stats. 2002, Ch. 448 (SB 688).

In support of their contention that the applicable limitations period for invasion of privacy is one year pursuant to section 340, Defendants cite to one case interpreting the law prior to the 2002 amendment, Cain v. State Farm Mut. Auto. Ins. Co. , 62 Cal. App. 3d 310, 313 [132 Cal.Rptr. 860] (1976). (Defs.' First Mot. to Dismiss [Doc. 16] 7:17-18 n.8, 8:1-2 n.9.) The Cain court applied the then-applicable Cal. Code Civ. Proc. § 340(3), providing a one-year limitations period "for injury to ... one caused by the wrongful act ... of another[.]" Id. Defendants do not show why the applicable statute of limitations today is the current section 340, which covers, among others, "libel, slander, [and] false imprisonment[,]" but which omits injury caused by wrongful act. See Cal. Code Civ. Proc. § 340(c). Rather, section 335.1 of the California Code of Civil Procedure now provides a two-year statute of limitations for "injury to ... an individual ... caused by the wrongful act ... of another." See Cal. Code Civ. Proc. § 335.1.

Accordingly, section 335.1 provides the applicable limitations period of two years. See Cal. Code Civ. Proc. § 335.1 ; Cain , 62 Cal. App. 3d at 313 [132 Cal.Rptr. 860] ; see alsoWilson v. City of Oakland , 2012 WL 669527, at *3 (N.D. Cal. Feb. 29, 2012).

Blanton v. Torrey Pines Prop. Mgmt., Inc. , No. 15-CV-0892 W, 2015 WL 9692737, at *7-8 S.D. Cal. Dec. 17, 2015. Other district courts have also applied a two-year statute of limitations to privacy claims under California law. E.g., Abdulaziz v. Twitter, Inc. , No. 19-cv-06694-LB, 2020 WL 6947929, at *7 & n.60 (N.D. Cal. Aug. 12, 2020) ; Pham v. Bast , No. 17-cv-04194-WHO, 2019 WL 7753450, at *10 (N.D. Cal. July 22, 2019) ; Saling v. Royal , No. 2:13-cv-01039-TLN-EFB, 2016 WL 5870772, at *5 (E.D. Cal. Oct. 7, 2016) ; Mitchell v. Reg'l Serv. Corp. , No. C 13-04212 JSW, 2014 WL 12607809, at *3 (N.D. Cal. Apr. 23, 2014) ; Buzayan v. City of Davis...