M. K. v. Google LLC

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M. K., Plaintiff, v. GOOGLE LLC, et al., Defendants.

No. 21-cv-08465-VKD

United States District Court, N.D. California, San Jose Division

August 1, 2023

ORDER GRANTING IN PART AND DENYING IN PART GOOGLE'S MOTION TO DISMISS RE: DKT. NO. 78

VIRGINIA K. DEMARCHI, United States Magistrate Judge

Plaintiff M.K., through his mother as guardian ad litem, brings this action against Google, LLC (“Google”) and the Fremont Unified School District (“District”) asserting claims for relief for harm M.K. alleges he suffered when the District used a Google platform to facilitate remote learning during the COVID-19 pandemic.^[1] Both defendants moved to dismiss M.K.'s original complaint pursuant to Rule 12(b)(6). Dkt. Nos. 21, 33. The Court granted these motions, but gave M.K. leave to amend his complaint. Dkt Nos. 64, 65.

M.K.'s first amended complaint (“FAC”) asserts four claims against Google for: (1) violation of the federal Video Privacy Protection Act (“VPPA”), 18 U.S.C. § 2710; (2) violation of California's unfair competition law (“UCL”), Cal. Bus. & Prof. Code § 17200, et seq.; (3) violation of the California Student Online Personal Information Protection Act (“SOPIPA”), Cal. Bus. & Prof. Code § 22584; and (4) “failure to protect.” Dkt. No. 66 ¶¶ 39-104.^[2] Google again moves to dismiss all claims pursuant to Rule 12(b)(6). See Dkt. No. 78. M.K. opposes the motion, except that he has withdrawn his SOPIPA claim against Google. See Dkt. No. 83.

The Court held a hearing on Google's motion to dismiss on July 18, 2023. Dkt. No. 86. Upon consideration of the moving and responding papers, as well as the oral arguments presented, the Court grants the motion in part and denies it in part.

I. BACKGROUND

The following facts are based on the allegations of the FAC.

In 2020, M.K. was a student at a public elementary school in the District. Dkt. No. 66 ¶ 1. In March 2020, due to the COVID-19 pandemic, the District closed its school buildings, and M.K. began attending school remotely using a Google platform.^[3] Id. ¶¶ 1-2. According to the FAC, “M.K's parents were not given an option to opt out or an alternative to receive education if they did not wish to submit M.K. to the risks of attending school on the Google platform.” Id. ¶ 2.

The District assigned M.K. a Google account. Id. ¶ 3. Using this account, M.K. “[was] allowed to access online videos provided by Google's YouTube, a video sharing platform[,] as well as Google [Slide Show], a platform that allows individuals to watch videos as well as insert videos and messages into slideshows to watch.” Id. ¶ 7. The District logged M.K. out of his Google account at the end of each school day. Id. ¶ 3.

According to the FAC, M.K. used multiple devices to access his Google account, including his personal iPad and, later, a Google Chromebook computer supplied by the District. Id. ¶¶ 4, 6. M.K. watched videos on Google's YouTube and Slide Show platforms while logged into the Google platform for school. Id. ¶ 9. M.K.'s teachers informed his parents that M.K. was watching videos during class when he should have been focused on his lessons. Id. ¶ 10. M.K.'s teachers further advised M.K.'s parents that the teachers could see M.K.'s online activity during class time. Id. Based on this information, M.K. alleges that Google gave the District and other unidentified third parties access to M.K.'s online activity. Id. ¶ 13.

On or about January 14, 2021, one of M.K's teachers reported receiving a sexually explicit communication from M.K. via a Google chat message. Id. ¶ 16. M.K. alleges that his Google account had been hacked and that he did not send the message. Id. ¶¶ 17, 20, 24. The District investigated the message incident. As part of that investigation, the District obtained and reviewed information about the dates and times M.K.'s Google account was accessed, the activities the account user engaged in while logged in to the account, and the IP addresses used to access the account. Id. ¶¶ 18, 20-21, 49.

According to the FAC, on or about January 27, 2021, M.K.'s teacher “scheduled a parentteacher zoom call and made a teacher suspension on the basis of ‘Sexual Harassment via Google Classroom.'” Id. ¶ 22. The FAC describes the suspension variously as a “teacher removal from class,” a two-day suspension from school, an exclusion from “his regular school day” that lasted “weeks,” and a “permanent[]” removal from class. Id. ¶¶ 23, 25-26, 28, 82, 107. M.K. eventually stopped attending school in the District. Id. ¶¶ 31, 82.

M.K. alleges that “Google made M.K.'s personal information available to hackers, and to staff of [the District], who then penalized [him] for a hacker[']s activity on Google Slideshow and Google Chat.” Id. ¶ 52. He also alleges that Google failed to implement adequate cybersecurity measures to prevent his Google account from being hacked, or his personal information from being used or disclosed for unauthorized purposes, and that Google failed to warn M.K.'s parents and the District of the “vulnerability of Google Classrooms.” Id. ¶¶ 77-81, 87. M.K. seeks “an order requiring Google to permanently destroy all data of M.K.” and other injunctive relief, damages for “emotional distress and damage to reputation caused by negligence,” and punitive damages. Id. at 16-17.

II. LEGAL STANDARD

A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) tests the legal sufficiency of the claims in the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal is appropriate where there is no cognizable legal theory or an absence of sufficient facts alleged to support a cognizable legal theory. Id. (citing Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990)).

At the motion to dismiss stage, all material allegations in the complaint must be taken as true and construed in the light most favorable to the claimant. Id.

The factual allegations in the complaint “must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Implausible claims for relief will not survive a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). A claim is plausible if its factual content permits the court to draw a reasonable inference that the defendant is liable for the alleged misconduct. Id. at 678.

Rule 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.” However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. “The court is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994).

III. DISCUSSION

As M.K. has withdrawn his SOPIPA claim against Google (claim 3), the Court considers only Google's motion to dismiss claims 1, 2 and 4. The Court also considers Google's request for judicial notice.

A. Google's Request for Judicial Notice

Google requests that the Court take judicial notice of guidance regarding the Children's Online Privacy Protection Act (“COPPA”), 15 U.S.C. § 6501 et seq., published by the Federal Trade Commission (“FTC”): “Complying with COPPA: Frequently Asked Questions, Federal Trade Commission,” https://www.ftc.gov/business-guidance/resources/complving-coppa-frequently-asked-questions (“COPPA Guidance”). See Dkt. No. 78 at 3-4. Among other things, the COPPA guidance states that “[m]any school districts contract with third-party website operators to offer online programs . . . [i]n these cases, the schools may act as the parent's agent and can consent under COPPA to the collection of kids' information on the parent's behalf.” Id. at 3. M.K. does not oppose Google's request for judicial notice, but argues that the FTC's COPPA guidance is irrelevant to the present motion. Dkt. No. 83 at 2.

“Generally, district courts may not consider material outside the pleadings when assessing the sufficiency of a complaint.” Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 998 (9th Cir. 2018). However, a court may take judicial notice of facts that are “not subject to reasonable dispute” because they are “generally known” or “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Id. at 999; Fed.R.Evid. 201(b).

Courts may take judicial notice of matters of public record, including statutes, regulations and agency interpretations thereof. See Jonna Corp. v. City of Sunnyvale, CA, No. 17-CV-00956-LHK, 2017 WL 5194513, at *4 (N.D. Cal. Nov. 9, 2017). But while a court may take notice of public records, it may not take notice of disputed facts stated in those records. Khoja, 899 F.3d at 999 (citing Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001)).

The Court grants Google's request for judicial notice of the FTC's published guidance because the request is unopposed. However, the guidance has no bearing on the Court's resolution of the motion to dismiss.

B. Claim 1: Video Privacy Protection Act

Congress enacted the Video Privacy Protection Act (“VPPA”), 18 U.S.C. § 2710, “to preserve personal privacy with respect to the rental purchase or delivery of video tapes or similar audio visual materials.” Mollett v. Netflix, Inc., 795 F.3d 1062, 1065 (9th Cir. 2015) (quoting S. Rep. 100-599, at 5 (1988), reprinted in 1988 U.S.C.C.A.N. 4342-1.). The statute forbids “video tape service provider[s]” from knowingly disclosing “personally identifiable information concerning any consumer.” 18 U.S.C. § 2710(b)(1). A person aggrieved by a violation of the statute may bring an action for actual...