May v. Google LLC et al

Filing 90

ORDER DENYING [83-1] GOOGLE'S MOTION FOR RECONSIDERATION OF THE COURT'S JULY 17, 2024, ORDER ON GOOGLE'S MOTION TO STAY DISCOVERY AND VACATING HEARING. Signed by Judge Beth Labson Freeman on 11/25/2024. (blflc3, COURT STAFF) (Filed on 11/25/2024) (Entered: 11/25/2024)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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JUDY MAY,

Case No. 24-cv-01314-BLF
Plaintiff,

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v.

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GOOGLE LLC, et al.,
Defendants.

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ORDER DENYING GOOGLE’S
MOTION FOR RECONSIDERATION
OF THE COURT’S JULY 17, 2024,
ORDER ON GOOGLE’S MOTION TO
STAY DISCOVERY AND VACATING
HEARING

United States District Court
Northern District of California

[Re: ECF No. 83-1]
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Defendants Google LLC, Google Arizona LLC, and Google Payment Corp. (collectively,
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“Google”)1 filed the Motion for Reconsideration seeking reconsideration of the Court’s Order
granting in part and denying in part their motion to stay discovery. ECF 83-1. Plaintiff Judy May
(“May”) filed an opposition. ECF 89. The Court finds this motion appropriate for disposition
without oral argument. See Civil Local Rule 7-1(b). After considering the moving and responding
papers and the relevant record, the Court DENIES Google’s Motion for Reconsideration and
VACATES the hearing set for January 2, 2025.

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I.

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BACKGROUND
In April 2021, May fell victim to a gift card scam involving Google Play gift cards. ECF 1,

¶ 95. On March 5, 2024, May filed a complaint alleging violations of the California Unfair

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Competition Law (“UCL”), Cal. Bus. Prof. Code § 17200 et seq., the California Consumers Legal

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Remedy Act (“CLRA”), Cal. Civ. Code § 1750 et seq., and Cal. Penal Code § 496 (“Section 496”),

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and conversion against Google. ECF 1. On May 13, 2024, Google filed a motion to dismiss. ECF
39. On July 17, 2024, the Court granted in part and denied in part Google’s Motion to Stay Discovery

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Plaintiff has dismissed without prejudice claims against Alphabet, Inc. subject to a tolling
agreement. See ECF 52.

United States District Court
Northern District of California

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Until Resolution of Motion to Dismiss. ECF 53. The Court ordered that “Plaintiff may seek

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discovery for the class period consistent with the statute of limitations for that claim.” Id. at 5. On

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September 26, 2024, the Court hosted a hearing on Google’s motion to dismiss. ECF 76. On

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November 4, 2024, the Court granted in part and denied in part Google’s motion to dismiss. ECF

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87. The Court dismissed May’s claim No. 5 for receiving, retaining, withholding, or concealing

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stolen property in violation of Cal. Penal Code § 496 to the extent it seeks treble damages without

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leave to amend, and dismissed May’s remaining claims with leave to amend. See id.

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II.

LEGAL STANDARD

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Trial courts have inherent power to reconsider, set aside, or amend interlocutory orders at

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any time prior to entry of a final judgment. Fed. R. Civ. P. 54(b). The substantive standard governing

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reconsideration of an interlocutory order is the same as that which governs motions to alter or amend

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judgment under Federal Rule of Civil Procedure 59(e). Motions for reconsideration are disfavored

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and “should not be granted, absent highly unusual circumstances, unless the district court is

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presented with newly discovered evidence, committed clear error, or if there is an intervening

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change in the controlling law.” McDowell v. Calderon, 197 F.3d 1253, 1254 (9th Cir. 1999) (per

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curiam) (internal quotation and citation omitted). Furthermore, “[a] motion for reconsideration

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‘may not be used to raise arguments or present evidence for the first time when they could

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reasonably have been raised earlier in the litigation.’” Marlyn Nutraceuticals, Inc. v. Mucos Pharma

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GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (quoting Kona Enters., Inc. v. Estate of Bishop,

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229 F.3d 877, 890 (9th Cir. 2000)).

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The Northern District of California also has local rules governing motions for

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reconsideration. A motion for reconsideration may be made on three grounds: (1) a material

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difference in fact or law exists from that which was presented to the court, which, in the exercise of

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reasonable diligence, the moving party did not know at the time of the order for which

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reconsideration is sought; (2) the emergence of new material facts or a change of law; or (3) a

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manifest failure by the court to consider material facts or dispositive legal arguments. Civ. L.R. 7-

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9(b). The moving party may not reargue any written or oral argument previously asserted to the

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court. Civ. L.R. 7-9(c).
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III.

DISCUSSION
Google argues that the Court and the parties “are aware of new facts that warrant

reconsideration” of the Court’s prior order because May “has not pled a cognizable legal theory,”
and “will be required to amend her Complaint.” ECF 83-1 at 2. In doing so, Google restates its

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arguments in its motion to dismiss that its limitation of liability included in the gift card terms of
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service may dispose all of May’s claims, that May has failed to identify any legal duty requiring

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Google to investigate every scam claim, and that May has failed to adequately plead her Section
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496, UCL, and conversion claims. See id. at 2-4. Google also argues that it is prejudiced because
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United States District Court
Northern District of California

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May still insists on production for discovery even though she “must amend [her complaint] in order
to state a viable theory.” See id. at 4-5.
May opposes Google’s motion. ECF 89. May argues that there is no change in circumstances
because Google’s prior motion to dismiss was not dispositive and does not warrant a stay in
discovery. Id. at 1-2. May states that she will “amend the complaint to address the Court’s concerns.”

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Id. at 2. May also argues that a stay in discovery may imperil the settlement process and other
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deadlines set by the Court. Id. at 3-4. May further argues that Google would not be prejudiced to
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comply with the discovery requests because her discovery requests are reasonable. Id. at 4-5.
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Having considered the parties’ arguments, the Court DENIES Google’s Motion for

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Reconsideration. The Court finds that there is no change in circumstances that warrants a stay of
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discovery. First, Google assumes that even if the Court finds that May has failed to adequately plead
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all her claims, the Court would not grant Plaintiff leave to amend. Here, the Court freely gave May
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leave to amend nearly all her claims. ECF 87. Thus, Google’s prior motion to dismiss is not

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dispositive, and Google has not shown that an amendment of the complaint would be futile. See
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Palantir Techs. Inc. v. Abramowitz, No. 19-cv-6879-BLF, 2020 WL 13548687, at *3 (N.D. Cal.
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Jan. 30, 2020) (denying motion to stay because the Court may give plaintiff leave to amend its
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complaint); ECF 87. The Court notes that the amended complaint has not yet been filed, nor has a
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new motion to dismiss been filed. Thus, the Court cannot find that a stay of discovery is warranted.
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Second, Google has not demonstrated that a denial of the stay would be prejudicial or
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burdensome. May correctly states that Google’s speculation that May cannot cure the deficiencies

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is insufficient to support its assertion that it is prejudiced without a stay in discovery. ECF 89 at 4-

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5; see ECF 83-1 at 5; Optronic Techs., Inc. v. Ningbo Sunny Elec. Co., Ltd., No. 16-cv-6370, 2018

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WL 1569811, at *2 (N.D. Cal. Feb. 16, 2018) (denying motion to stay discovery because

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“[d]efendants have not offered a particularized showing describing why discovery in this case is any

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more burdensome than it is on parties to other civil litigations”).

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IV.

ORDER

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For the foregoing reasons, IT IS HEREBY ORDERED that:

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Google’s motion for reconsideration of the Court’s July 17, 2024, order on Google’s motion

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to stay discovery is DENIED; and the January 2, 2025 hearing is VACATED.

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United States District Court
Northern District of California

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Dated: November 25, 2024
______________________________________
BETH LABSON FREEMAN
United States District Judge

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