eOnline Global, Inc et al v. Google Inc.

Filing 118

Order Granting 72 Defendant's Motion for Summary Judgment; Denying [82-3] Plaintiffs' Cross Motion for Summary Judgment Signed by Judge Edward J. Davila on 5/15/2019.(ejdlc1S, COURT STAFF) (Filed on 5/15/2019)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 EONLINE GLOBAL, INC, et al., Plaintiffs, 9 v. 10 United States District Court Northern District of California 11 GOOGLE LLC, Defendant. 12 Case No. 5:16-cv-05822-EJD ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFFS’ CROSS MOTION FOR SUMMARY JUDGMENT Re: Dkt. Nos. 72, 82-3 This matter is a dispute over a contract for online advertising. Defendant Google LLC 13 14 connects companies that seek to advertise their goods or services with the publishers of webpages 15 that wish to make a profit by placing ads on their webpages. Plaintiffs eOnline Global, Inc., 16 Sonoran Online Marketing, LLC, and Four Peaks Online Marketing, LLC (collectively 17 “Plaintiffs”) are website publishers that have brought suit against Google for breach of contract, 18 breach of the implied covenant of good faith and fair dealing, and for declaratory relief. Their 19 claims arise from Google’s termination of their advertising accounts and withholding of more than 20 $400,000 in unpaid funds. Google has moved for summary judgment as to all three of Plaintiffs’ 21 causes of action. Plaintiffs cross-moved for summary judgment. The Court has considered the 22 parties’ papers and listened to their oral argument. For the reasons stated below, the Court grants 23 Google’s motion and denies Plaintiffs’ cross motion. 24 I. 25 26 27 28 Background Google runs an advertising program called AdSense where it acts as the go-between for advertisers and publishers. Ex. 20, Liu Decl. ¶ 3. Through AdSense, Google provides publishers, Case No.: 5:16-cv-05822-EJD ORDER GRANTING MOTION FOR SUMMARY JUDGMENT; DENYING CROSS MOTION FOR SUMMARY JUDGMENT 1 1 such as Plaintiffs, with bits of code to post on their webpages. Liu Decl. ¶ 3. Google’s algorithms 2 determine which ads to feature on which websites, and that bit of code displays the ads. Id. ¶ 4. 3 In the version of the program of which Plaintiffs were a part, every time a visitor to their websites 4 clicked on an ad, Google charged the advertiser and paid 68 percent of the charge to Plaintiffs 5 while retaining 32 percent for itself. Id. ¶ 6. Google uses various tools to attempt to ensure that it 6 only charges advertisers for “valid” clicks—that is clicks from real users with real interest in the 7 advertisers’ goods and services. Id. In theory, the publishers attract website visitors who would 8 be genuinely interested in the ads, and in turn they receive payment when their visitors click the 9 ads. Id. ¶¶ 6, 24. Advertisers, meanwhile, can display their ads to potential customers that have genuine interest in their goods and services. Id. Google pays publishers at the end of the calendar 11 United States District Court Northern District of California 10 month following any month when the publishers earned a balance. Ex. 9 at 514. 12 Plaintiffs are three website publishing companies founded, owned, and run by Mark 13 Ashworth and Travis Newman. Ex. 3 at 19:19-20:3; Ex. 4 at 38:18-39:16. Because Google limits 14 each AdSense account to 500 URLs, Ashworth and Newman—following advice from a Google 15 employee’s online forum posting—created and used three separate companies to increase the 16 number of URLs that could they use with AdSense. Ex. B at 16:12-20. Ashworth and Newman 17 controlled the three companies and ran their business the same way across them. Ex. 4 at 20:14- 18 23:6. Most of the content for their websites was created by a third-party vendor called Textbroker, 19 which writes discrete articles. See Ex. 43. Plaintiffs also hired three “writer managers,” including 20 an individual named Mindi Fishman, to manage the creation of the content and, sometimes, to 21 write articles themselves. Ex. 3 at 20:14-20; Ex. 5 at 30:9-12, 36:15-21, 39:9-14. 22 As participants in AdSense, Plaintiffs agreed to the Google AdSense Online Terms of 23 Service (“the TOS”). Ex. 9. The TOS expressly incorporate another document called the 24 AdSense Program Policies (ex. 10 (“the Program Policies”)) (collectively “the Agreement”). Ex. 25 9 at 1. Plaintiffs do not dispute that these two documents constitute the contract at issue and that 26 they are bound by their terms. The Agreement lays out how publishers will be paid, sets standards 27 28 Case No.: 5:16-cv-05822-EJD ORDER GRANTING MOTION FOR SUMMARY JUDGMENT; DENYING CROSS MOTION FOR SUMMARY JUDGMENT 2 1 and requirements for webpages and content, allows either party to terminate the Agreement for 2 any reason, and includes a Limitation of Liability provision that limits the liability of both parties 3 to “THE NET AMOUNT RECEIVED AND RETAINED BY THAT PARTICULAR PARTY . . . 4 DURING THE THREE MONTH PERIOD IMMEDIATELY PRECEDING THE DAY OF THE 5 CLAIM.” Ex. 9; Ex. 10. The Agreement also allows Google to withhold payment if it 6 “terminate[s] the Agreement due to [a publisher’s] breach or due to invalid activity.” Ex. 9 at 516. Plaintiff companies signed up for AdSense in 2008, 2010, and 2015. Liu Decl. ¶¶ 10-11. 8 They earned money through the program until the weeks preceding Google’s termination of their 9 accounts. Id. Google linked the accounts for each Plaintiff in their internal systems so that they 10 were evaluated together. See id. ¶ 37. In early 2016, Google began sending Plaintiffs warnings 11 United States District Court Northern District of California 7 that their ad placement on mobile sites violated Google’s standards. Liu Decl. ¶¶ 68-69. Google 12 sent more than a dozen warnings to Plaintiffs. Id. ¶ 67. Google terminated each Plaintiff 13 company’s account on July 12, 2016. Id. ¶ 70. The termination notice states: “This email is to 14 alert you that your AdSense account was found to be non-compliant with our AdSense program 15 policies and as a result, your AdSense account has been disabled. . . . Violation 16 explanation . . . It’s important for a site displaying AdSense to offer significant value to the user 17 by providing unique and relevant content, and not to place ads on auto-generated pages or pages 18 with little to no original content.” Ex. 35 (emphasis in the original). Plaintiffs filed an internal 19 appeal, but Google denied it on September 26, 2016. Liu Decl. ¶¶ 72-73. 20 At the time of the termination, Plaintiffs had $404,433.44 in unpaid amounts in their three 21 accounts. Kher. Decl. ¶ 7. Google credited this money, plus its share of the revenue from the ads 22 on Plaintiffs’ websites and an additional $221,000, back to the advertisers who had been charged 23 for the ads running on Plaintiffs’ websites. Kher Decl ¶¶ 6-11; Ex. 38; Ex. 39. 24 II. Legal Standard 25 Summary judgment is appropriate where the moving party shows that no genuine dispute 26 as to any material fact exists and that it is entitled to judgment as a matter of law. Fed. R. Civ. P. 27 28 Case No.: 5:16-cv-05822-EJD ORDER GRANTING MOTION FOR SUMMARY JUDGMENT; DENYING CROSS MOTION FOR SUMMARY JUDGMENT 3 1 56(a). A dispute is “genuine” if there is sufficient evidence that a reasonable fact finder could find 2 for the nonmoving party. Groupion, LLC v. Groupon, Inc., 859 F. Supp. 2d 1067, 1072 (N.D. Cal. 3 2012) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986)). A fact is “material” 4 if it could change the outcome of the case. Id. The Court must read the evidence and draw all 5 reasonable inferences in the light most favorable to the nonmoving party. Torres v. City of 6 Madera, 648 F.3d 1119, 1123 (9th Cir. 2011). 7 If the moving party will not bear the ultimate burden of persuasion at trial, like Google on its motion, then it must carry both the burden of production and the burden of persuasion on its 9 motion for summary judgment. Friedman v. Live Nation Merch., Inc., 833 F.3d 1180, 1188 (9th 10 Cir. 2016) (citing Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 11 United States District Court Northern District of California 8 (9th Cir. 2000)). To carry the burden of production, the moving party “must either produce 12 evidence negating an essential element of the nonmoving party’s claim . . . or show that the 13 nonmoving party does not have enough evidence of an essential element to carry its ultimate 14 burden of persuasion at trial.” Nissan Fire & Marine, 210 F.3d at 1102-03. To successfully carry 15 the burden of persuasion, the moving party must show the court that no genuine dispute of 16 material fact exists. Id. at 1102. If the moving party does not carry its initial burden of 17 production, then the nonmoving party need not produce any evidence to defeat the motion. Id. at 18 1103. But, if the moving party does carry the burden of production, then the nonmoving party 19 must identify with reasonable particularity enough evidence supporting its claim or defense to 20 create a genuine dispute of material fact to defeat the motion. Id.; Groupion, 859 F. Supp. 2d at 21 1072 (citing Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996)). Otherwise, the moving party 22 will win on its motion. Nissan Fire & Marine, 210 F.3d at 1103. 23 For motions where the moving party will bear the ultimate burden of proof at trial, such as 24 with Plaintiffs’ cross motion here, the analysis is slightly different. The moving party “must prove 25 each element essential of the claims upon which it seeks judgment by undisputed facts” in order to 26 succeed. First Pac. Networks, Inc. v. Atl. Mut. Ins. Co., 891 F. Supp. 510, 513 (N.D. Cal. 1995). 27 28 Case No.: 5:16-cv-05822-EJD ORDER GRANTING MOTION FOR SUMMARY JUDGMENT; DENYING CROSS MOTION FOR SUMMARY JUDGMENT 4 1 This showing “must be sufficient for the court to hold that no reasonable trier of fact could find 2 other than for the moving party.” t’Bear v. Forman, 359 F. Supp. 3d 882, 905 (N.D. Cal. 2019) 3 (quoting Atl. Mut. Ins. Co., 891 F. Supp. 3d at 513). Only then must the nonmoving party “present 4 significant probative evidence tending to support its claim or defense” to defeat the motion. 5 C.A.R. Transp. Brokerage Co. v. Darden Restaurants, Inc., 213 F.3d 474, 480 (9th Cir. 2000). 6 For both sorts of motions, the evidence presented by the nonmoving party must be must be 7 enough for a jury to return a verdict for the nonmoving party. In re Oracle Corp. Sec. Litig., 627 8 F.3d 376, 387 (9th Cir. 2010). If the nonmoving party’s “evidence is merely colorable or is not 9 significantly probative,” then summary judgment may be granted. Jay v. Serv. Employees Int’l Union-United Health Care Workers W., 2017 WL 3670781, at *3 (N.D. Cal. Aug. 25, 2017) 11 United States District Court Northern District of California 10 (citing McIndoe v. Huntington Ingalls Inc., 817 F.3d 1170, 1173 (9th Cir. 2016)). 12 For Google to prevail on its motion, it must either produce evidence negating an essential 13 element of Plaintiffs’ claims or show that Plaintiffs cannot produce sufficient evidence to carry the 14 burden of proof at trial for an essential element of its claims. If Google makes that initial 15 showing, Plaintiffs can still defeat Google’s motion by producing evidence that creates a genuine 16 issue of material fact. For Plaintiffs to prevail on the their cross motion, they present evidence 17 showing that no reasonable fact finder could find for Google as to each element of their claims. If 18 Plaintiffs make that showing, Google can defeat the motion by presenting evidence that creates a 19 genuine issue of material fact as to at least one element of the claims. 20 Plaintiffs, though, present the legal analysis differently. They assert: “the only relevant 21 questions are (1) whether Plaintiffs ‘breach[ed]’ ‘the Agreement’ such that confiscation [of the 22 unpaid funds] was permissible, and (2) whether Google decided to terminate Plaintiffs ‘due to’ 23 that supposed breach.” Cross Mot. at 1. This formulation erroneously omits any burden they may 24 bear as to each element of their claims. 25 26 27 28 Case No.: 5:16-cv-05822-EJD ORDER GRANTING MOTION FOR SUMMARY JUDGMENT; DENYING CROSS MOTION FOR SUMMARY JUDGMENT 5 1 III. Google’s Motion for Summary Judgment 2 A. Breach of Contract 3 Plaintiffs contend that Google breached the Agreement by retaining the unpaid funds when Plaintiffs’ termination was not “due to” any breach of the Agreement by Plaintiffs. ECF No. 43, 5 Am. Compl. ¶¶ 39-40; Cross Mot. at 10-18. The elements of a claim for breach of contract are: 6 “(1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) 7 defendant’s breach, and (4) the resulting damages to the plaintiff.” Oasis W. Realty, LLC v. 8 Goldman, 51 Cal. 4th 811, 821 (2011) (citation omitted). While Google first argues that it did not 9 breach the Agreement, the Court first considers Google’s second argument that Plaintiffs cannot 10 show that they performed under the Agreement—the second element. Google presents sufficient 11 United States District Court Northern District of California 4 evidence to carry their initial burden of production “negating” this element. See Nissan Fire & 12 Marine, 210 F.3d at 1102-03. Plaintiffs make no attempt to present their own evidence that would 13 create a genuine dispute of material fact as to that element, and their arguments—to the extent 14 their briefing even addresses their performance—are not persuasive. 15 16 1. Legal Framework The parties do not dispute that the Agreement is governed by California law. Ex. 9 at 517. 17 “A bedrock principle of California contract law is that ‘[h]e who seeks to enforce a contract must 18 show that he has complied with the conditions and agreements of the contract on his part to be 19 performed.’” Brown v. Dillard’s, Inc., 430 F.3d 1004, 1010 (9th Cir. 2005) (quoting Pry Corp. of 20 Am. v. Leach, 177 Cal. App. 2d 632, 639 (1960)); see also Oracle Am., Inc. v. Innovative Tech. 21 Distributors LLC, 2012 WL 4122813, at *20 (N.D. Cal. Sept. 18, 2012) (“It is axiomatic that a 22 plaintiff who has himself materially breached or failed to perform a contract may not pursue a 23 breach of contract action against the other party to the agreement.”); Wiz Tech., Inc. v. Coopers & 24 Lybrand, 106 Cal. App. 4th 1, 12 (2003), as modified (Feb. 6, 2003) (“A party complaining of the 25 breach of a contract is not entitled to recover therefor unless he has fulfilled his obligations.” 26 (citation and quotation omitted)); Consol. World Investments, Inc. v. Lido Preferred Ltd., 9 Cal. 27 28 Case No.: 5:16-cv-05822-EJD ORDER GRANTING MOTION FOR SUMMARY JUDGMENT; DENYING CROSS MOTION FOR SUMMARY JUDGMENT 6 1 App. 4th 373, 380 (1992) (“It is elementary a plaintiff suing for breach of contract must prove it 2 has performed all conditions on its part or that it was excused from performance.”). 3 The nonperformance or breach by a plaintiff must be material to preclude the claim for 4 breach of contract. Brown v. Grimes, 192 Cal. App. 4th 265, 277 (2011); see also Hitz Entm’t 5 Corp. v. Mosley, 2018 WL 2722512, at *4 (C.D. Cal. Apr. 10, 2018) (“To excuse performance by 6 one party to a contract, the breach by the other party must be material.” (citation and quoting 7 omitted)); Signal Hill Serv., Inc. v. Macquarie Bank Ltd., 2011 WL 13220305, at *14 (C.D. Cal. 8 June 29, 2011) (“The plaintiff must be free from substantial default in order to avail himself of the 9 remedies for the defendant’s breach.”). Whether a breach or failure to preform is material is generally a question of fact, but “if reasonable minds cannot differ on the issue of materiality, the 11 United States District Court Northern District of California 10 issue may be resolved as a matter of law.” Hitz Entm’t, 2018 WL 2722512, at *4 (quoting Brown, 12 192 Cal. App. 4th at 278 (citing Insurance Underwriters Clearing House, Inc. v. Natomas Co., 13 184 Cal. App. 3d 1520, 1526-1527 (1986)). Breach or nonperformance is material when it 14 “frustrate[s] the purpose of the contract.” Superior Motels, Inc. v. Rinn Motor Hotels, Inc., 195 15 Cal. App. 3d 1032, 1051 (Ct. App. 1987) (citation omitted). 16 When there is no genuine dispute of material fact that the complaining party failed to 17 perform, summary judgment is appropriate. Oracle, 2012 WL 4122813, at *20 (granting 18 summary judgment where “ITD . . . failed to pay Oracle for millions of dollars in product which it 19 purchased under the parties’ greement. . . . Accordingly, ITD cannot pursue a breach of contract 20 claim against Oracle . . . .”); see also Pena v. GMAC Mortg., LLC, 2010 WL 11519504, at *7 21 (C.D. Cal. Sept. 13, 2010). 22 23 2. Plaintiffs Failed to Perform Under the Agreement While Google presents evidence that Plaintiffs breached or failed to perform the 24 Agreement in several ways, the Court focuses on just two that are both material and without 25 dispute. First, Google has shown that Plaintiffs breached the Agreement by creating websites 26 specifically for running ads. The Program Policies prohibit this practice: “Google ads . . . may not 27 28 Case No.: 5:16-cv-05822-EJD ORDER GRANTING MOTION FOR SUMMARY JUDGMENT; DENYING CROSS MOTION FOR SUMMARY JUDGMENT 7 be . . . [p]laced on pages published specifically for the purpose of showing ads.” Ex. 10 at 004. 2 The undisputed facts establish that Plaintiffs did just that. Ashworth testified that Plaintiffs would 3 select the subject matter of their webpages by “looking at the verticals and figuring out which we 4 felt would make the most money.” Ex. 4 at 53:9-11; ECF No. 87-1 at 3 (Fact 13). Their two 5 biggest factors for choosing the website subject matters were the level of expected visitor traffic 6 and expected amount they would make per ad-click. Ex. 4 at 64:10-65:11. In one instance, 7 Newman and Ashworth planned to publish a website with content purporting to discuss free 8 website hosting services with topics such as “Free Websites” and “Free Servers,” and then run ads 9 that did not offer free services. Ex. 55 at 604. Newman explained in an email, “[t]he ads that will 10 run won’t offer free, but our visitor won’t know that :) There should be a decent amount of traffic 11 United States District Court Northern District of California 1 in this space too.” Id. Having selected profitable subject matters, Plaintiffs would then identify 12 keyword phrases, such as “bad credit loans” or “medicare supplemental insurance,” to draw high- 13 paying advertisements. Ex. 43 at -570; Ex. 44 at -504; ECF No. 87-1 at 3 (Fact 14). Plaintiffs 14 used the keyword phrases to write the titles for articles before writing the articles themselves. Ex. 15 5 at 137:2-17; Ex. 43 at 573; ECF No. 87-1 at 3 (Fact 14). Plaintiffs sometimes produced up to 16 100 titles for yet-to-be-written articles based on a single keyword phrase. Ex. 43 at 570; Ex. 44 at 17 504; ECF No. 87-1 at 3 (Fact 14). Plaintiffs would then provide the titles to Textbroker, who 18 wrote the actual text of the articles. Ex. 43 at 574; ECF No. 87-1 at 3-4 (Facts 12, 15-16). 19 Plaintiffs would instruct Textbroker to use each keyword phrase at least three times per article. Id. 20 Plaintiffs paid about $5.00 per article. See Ex. 46. Plaintiffs “manage[d] which articles g[o]t 21 written for which sites using which keywords.” Ex. 43 at 682. 22 With Plaintiffs focused on churning out content specifically to draw high paying ads and 23 large numbers of website visitors, the published content was frequently duplicative and/or lacking 24 substance or value. For example, on their website NoCreditUSA, eight of the 18 webpages 25 addressed how to obtain a credit card despite having a bad credit rating. See Ex. 19; ECF No. 87-1 26 at 6 (Fact 23). Plaintiffs made essentially no effort to ensure their websites offered content of 27 28 Case No.: 5:16-cv-05822-EJD ORDER GRANTING MOTION FOR SUMMARY JUDGMENT; DENYING CROSS MOTION FOR SUMMARY JUDGMENT 8 substance or value. Fishman would skim the articles to make sure that followed “English 101,” 2 but she did not review for them for quality or accuracy. See Ex. 5 at 126:15-127:17; 158:10-25; 3 ECF No. 87-1 at 4-5 (Fact 19). One of their websites purported to provide information on “How 4 to Get Instant Approval Credit Cards With Bad Credit,” but the website included no instructions 5 or directions for obtaining instant approval. See Ex. 26; ECF No. 87-1 at 5-6 (Fact 22). But 6 Fishman would make sure to check that each article repeated the keyword phrases several times. 7 Ex. 43 at 574; ECF No. 87-1 at 4-5 (Fact 19). The visitors to Plaintiffs’ websites noticed and 8 submitted complaints that the websites contained inaccurate and/or conflicting information. Ex. 9 48; Ex. 49; ECF No. 87-1 at 5 (Fact 21). These facts show Plaintiffs engaged in a deliberate 10 process to publish websites specifically to run high-paying ads—a violation of the Program 11 United States District Court Northern District of California 1 Policies. 12 Second, Plaintiffs do not dispute that that their websites were intentionally deceptive. The 13 Program Policies prohibit publishers from “us[ing] deceptive implementation methods to obtain 14 clicks.” Ex. 10 at 001. Plaintiffs though published websites where Fishman and Textbroker 15 created and uploaded content that appeared to be posts from multiple flesh-and-blood visitors 16 discussing the subject matter of the website. ECF No. 87-1 at 7-8 (Fact 28). For example, for 17 their website “AutoInsuranceSelect,” which ran Google’s ads, Ashworth sent Fishman an email 18 instructing her to “login as a [sic] different people. We will provide you with 5 login names to 19 distribute the articles evenly with. . . . [U]pload 2 articles each for each login that we provide.” 20 Ex. 50 at 951; ECF No. 87-1 at 7-8 (Fact 28). The email exchange shows Plaintiffs’ unambiguous 21 plan to deceive visitors into believing that their websites had an active community of legitimate 22 visitors when they did not. Google has carried the burden of production to show that Plaintiffs did 23 not perform under or breached these two provisions of the Agreement. 24 25 26 27 28 3. Plaintiffs Failures to Perform Was Material Google must also show that Plaintiffs’ failure to perform was material in order to negate the second element of Plaintiffs breach of contract claim. Here, “reasonable minds cannot differ” Case No.: 5:16-cv-05822-EJD ORDER GRANTING MOTION FOR SUMMARY JUDGMENT; DENYING CROSS MOTION FOR SUMMARY JUDGMENT 9 1 as to whether Plaintiffs’ nonperformance was material. See Hitz Entm’t, 2018 WL 2722512, at *4. 2 By creating websites specifically to run ads and by filling those websites with intentionally 3 deceptive content, Plaintiffs have “frustrated the purpose” of the Agreement. See Superior Motels, 4 195 Cal. App. 3d at 1051. These breaches and nonperformance of the Agreement happened across 5 the pages that generated the majority of Plaintiffs’ earnings in the six weeks prior to their 6 termination. Liu Decl. ¶¶ 50, 64-66. The NoCreditUSA website, by itself, generated over 44 7 percent of their earnings during that time period. Id. ¶ 66. Google has therefore presented 8 sufficient evidence to carry its initial burden of production to negate the second element of 9 Plaintiffs’ breach of contract claim. 10 United States District Court Northern District of California 11 4. Plaintiffs’ Arguments To the extent Plaintiffs even attempt to rebut Google’s argument regarding this element, 12 their arguments are unpersuasive. The Court notes, as an initial matter, that Plaintiffs neither 13 present their own evidence nor dispute any of the facts discussed above. Instead, Plaintiffs make 14 four other arguments to support their claim for breach of contract. First, they argue that they did 15 not commit the specific breaches Google identified in the termination notice and in its internal 16 documentation. Cross Mot. at 10-15. But this argument addresses whether Google breached the 17 Agreement by withholding the unpaid funds without justification. It does not show that Plaintiffs 18 otherwise performed their obligations. Second, they argue that “most” of the alleged breaches 19 identified by Google are found in documents other than the TOS or Program Policies, so Plaintiffs 20 were not bound by those documents. Cross Mot. at 15-17. The Court need not consider this 21 argument because the Court finds that Plaintiffs breached the Program Policies, which Plaintiffs 22 concede were binding on them as part of “the Agreement.” Cross Mot. at 1-2, 3-4, 16. Third, to 23 the extent that Google identifies provisions of the Agreement that Plaintiffs breached, Plaintiffs 24 discount those breaches because for lacking any “causal tie” to the provision of the TOS that 25 would allow Google to withhold any unpaid funds. Cross Mot. at 17-18. This argument fails for 26 the same reason the first argument failed; Plaintiffs must show that they performed independently 27 28 Case No.: 5:16-cv-05822-EJD ORDER GRANTING MOTION FOR SUMMARY JUDGMENT; DENYING CROSS MOTION FOR SUMMARY JUDGMENT 10 1 of Google’s alleged breach. And finally, Plaintiffs assert that this matter concerns a number of 2 genuine factual disputes that only a jury can decide. Cross Mot. at 18-19. But Plaintiffs do not 3 dispute any of the facts showing that they breached the two provisions of the Program Policies 4 discussed above. Given the plain language of the Agreement, and the undisputed facts of 5 Plaintiffs’ conduct, no reasonable jury could conclude that Plaintiffs performed under the 6 Agreement. Accordingly, the Court grants Google’s motion on the breach of contract claim. The 7 Court does not reach Google’s argument that it did not breach the Agreement. B. 9 Under California law, “[e]very contract imposes upon each party a duty of good faith and 10 fair dealing in its performance and its enforcement.” Foley v. Interactive Data Corp., 47 Cal. 3d 11 United States District Court Northern District of California 8 Breach of the Implied Covenant of Good Faith and Fair Dealing 654, 683 (1988). “The implied covenant protects the reasonable expectations of the contracting 12 parties based on their mutual promises.” Digerati Holdings, LLC v. Young Money Entm’t, LLC, 13 194 Cal. App. 4th 873, 885 (2011). “[A] breach of the implied covenant is necessarily a breach of 14 contract.” Id. To maintain a claim for breach of the implied covenant, a plaintiff must show that 15 “a contract exists between the parties, that the plaintiff performed his contractual duties or was 16 excused from nonperformance, that the defendant deprived the plaintiff of a benefit conferred by 17 the contract in violation of the parties’ expectations at the time of contracting, and that the 18 plaintiff’s damages resulted from the defendant’s actions.” Singh v. Google Inc., 2017 WL 19 2404986, at *3 (N.D. Cal. June 2, 2017). For the same reasons discussed above, the Court finds 20 that Plaintiffs failed to perform under the contract. Google is entitled to summary judgment on the 21 claim for breach of the implied covenant. 22 C. 23 Plaintiff’s third cause of action seeks a declaratory judgment that the Limitation of 24 Liability provision is unenforceable due to unconscionability. Am. Compl. ¶¶ 49-54; Ex. 9 at 516. 25 Google argues that Plaintiffs lack standing to pursue this claim because their other claims fail, so 26 the Limitation of Liability provision has no impact on them. “Three elements form the irreducible 27 28 Declaratory Relief Case No.: 5:16-cv-05822-EJD ORDER GRANTING MOTION FOR SUMMARY JUDGMENT; DENYING CROSS MOTION FOR SUMMARY JUDGMENT 11 1 constitutional minimum of standing to file suit in federal court.” Ctr. for Biological Diversity v. 2 Mattis, 868 F.3d 803, 816 (9th Cir. 2017) (analyzing standing for a claim for declaratory relief). 3 “The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged 4 conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” 5 Id. The Court agrees with Google that Plaintiffs “lack[] standing to seek . . . declaratory relief 6 because they would not stand to benefit from such relief.” Slayman v. FedEx Ground Package 7 Sys., Inc., 765 F.3d 1033, 1047-48 (9th Cir. 2014). Google’s motion is granted as to Plaintiffs’ 8 claim for declaratory relief. 9 IV. 10 United States District Court Northern District of California 11 12 13 14 15 Conclusion For the reasons discussed above, the Court grants Google’s motion for summary judgment as to each of Plaintiffs’ claims and denies Plaintiffs’ cross motion for summary. IT IS SO ORDERED. Dated: May 15, 2019 ______________________________________ EDWARD J. DAVILA United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No.: 5:16-cv-05822-EJD ORDER GRANTING MOTION FOR SUMMARY JUDGMENT; DENYING CROSS MOTION FOR SUMMARY JUDGMENT 12

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