Devin Rose v. Google LLC

relief is unneeded, and the motion for relief is moot. [1] [1] The sanctions requests will be addressed at the August 27 th hearing.

Tentative Ruling

Re: Demurrer Date: 8/27/26 Time: 11:00 am Moving Party: Google LLC ("Google" or "Defendant") Opposing Party: Devin Rose ("Plaintiff") Department: 11 Judge: Bruce G. Iwasaki ________________________________________________________________________

Defendant's request for judicial notice is granted. Exhibit 1 is a magazine article. Exhibit 2 is a webpage from Google's website. Plaintiff references the exhibits in the complaint. (See Defendant's Request for Judicial Notice, p. 3.) The Court will judicially notice the exhibits' existence. Defendant's demurrer is sustained with leave to amend in part and overruled in part. BACKGROUND This is a putative class action. Plaintiff claims he purchased a Google Drive ("Drive") subscription. (See Complaint, 5.)

He alleges that "his Drive files were deleted" unexpectedly and that Google "could not provide any solution to restore the deleted files." (Ibid.) He contends Google has "consistently failed to inform the public" and subscribers "that their Drive files can be deleted without warning." (Id. at P. 1.) Here, Google demurs to the first cause of action for violation of Civil Code section 1750, the Consumer Legal Remedies Act ("CLRA"), and the second cause of action for violation of Business and Professions Code section 17200, the Unfair Competition Law ("UCL").

APPLICABLE LAW Demurrer When considering demurrers, courts read the allegations liberally and in context, and "treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law." (Serrano v. Priest (1971) 5 Cal.3d 584,

591.) " A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed." (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) It is error " to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment." (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.) CLRA The CLRA does not express a "general proscription against 'unfair' or 'deceptive' acts or practices." (Stern, Business & Professions Code Section 17200 Practice (The Rutter Group 2025) P. 10:4.) "Instead," the statute "sets forth a laundry list of 29 activities defined to be 'unlawful.'" (Ibid.; see also Civ.

Code Sec. 1770, subd. (a).) "Some of these practices are also found in the laundry list of practices that are deemed to constitute false advertising and, hence, are also actionable under" the UCL and Business and Professions Code section 17500, the False Advertising Law ("FAL"). (Stern, supra, at P. 10:4.) "The CLRA broadly applies to any transaction involving the sale or lease of goods or services to a 'consumer.'" (Id. at P. 10:16.) A "consumer" is "an individual who seeks or acquires, by purchase or lease, any goods or services for personal, family, or household purposes." (Id. at P. 10:26.)

The statute "broadly defines 'transaction' as 'an agreement between a consumer and any other person, whether or not the agreement is a contract enforceable by action, and includes the making of, and the performance pursuant to, that agreement.'" (Id. at P. 10:18.) Moreover, the statute "is to be 'liberally construed and applied to promote its underlying purposes, which are to protect consumers against unfair and deceptive business practices and to provide efficient and economical procedures to secure such protection.'" (Id. at P. 10:17.)

UCL "[T]he UCL permits a cause of action to be brought if a practice violates some other law. In effect, the 'unlawful' prong of [section] 17200 makes a violation of the underlying law a per se violation of [section] 17200." (Id. at P. 3:53.) "Virtually any law or regulation -- federal or state, statutory or common law -- can serve as predicate for a [section] 17200 'unlawful' violation. Thus, if a 'business practice' violates any law -- literally -- it also violates [section] 17200 and may be redressed under that section." (Id. at P. 3:56.) "The second 'wrong' proscribed by [section] 17200 is 'unfair' business practices.

Because [section] 17200's definition of the five proscribed 'wrongs' is set forth in the disjunctive, a business practice can be 'unfair' -- and violative of [section] 17200 -- even if it is not 'deceptive' and even if it is 'lawful.'" (Id. at P. 3:112.) "The 'unfair' standard is intentionally broad, allowing courts maximum discretion to prohibit new schemes to defraud." (Id. at P. 3:113.)

" The third type of conduct proscribed by [section] 17200 is 'fraudulent' business practices." (Id. at P. 3:153.) "A business practice is 'fraudulent' within the meaning of [section] 17200 if 'members of the public are likely to be deceived.'" (Id. at P. 3:154.) "An advertisement's potentially deceptive effect is measured by the audience to which it is addressed. Under the UCL and False Advertising statute, this will usually be the 'reasonable person' standard." (Ibid.) DISCUSSION Defendant advances five arguments.

The first three arguments pertain to both the CLRA claim and the UCL claim. The last two arguments pertain only to the CLRA claim. Actionable Misrepresentation Defendant: * The complaint does not identify "the specific representation" that Google "actually made and the particular fact that representation conveyed." (Demurrer, p. 4; see also id. at p. 5; Reply, pp. 1-2.) * The "alleged representations about Drive's security are non-actionable puffery[.]" (Demurrer, p. 6, bolding and capitalizing deleted; see also id. at p. 7; Reply, pp. 2-4.) * "The alleged representations would not mislead a reasonable consumer[.]" (Demurrer, p. 7, bolding and capitalizing deleted; see also id. at pp. 8-9; Reply, pp. 4-5.)

Plaintiff: * The complaint alleges "[e]ssential facts about the challenged representations[.]" (Opposition, p. 3, bolding deleted; see also id. at pp. 4-5.) * Defendant's "security representations [constitute] actionable statements about Drive's core functionality[.]" (Id. at p. 5, bolding and capitalizing deleted; see also id. at p. 6.) * "The challenged representations plausibly would mislead a reasonable consumer[.]" (Id. at p. 6, bolding deleted; see also id. at pp. 7-8.) The Court finds the allegations insufficiently specific.

Plaintiff cites paragraphs 5, 10, 33, 38, 55, and 69. (See Opposition, p. 3.) Even assuming Plaintiff is not obligated to quote specific advertisements, the allegations appear vague and conclusory. Paragraphs 5 and 10 do not allege misrepresentations. Paragraph 33 suggests that Defendant made false statements, but it fails to explain what the false statements were. Paragraphs 38, 55, and 69, at most, allege a generic misrepresentation that "files saved in Drive are secure" or "remain secure."

(Complaint, P.P. 38, 55, 69.) The Court finds that the misrepresentation is overbroad and ambiguous and amounts to puffery. (See Stern, supra, at P. 5:211.2 [noting numerous similar terms and statements that have been found to be non-actionable - e.g., "your digital life safe and sound," "always protected," "the worldwide leader in automotive safety," and "the strictest safety standards possible"].) Plaintiff needs to allege something more precise and concrete to establish an actionable misrepresentation.

This portion of the demurrer is sustained with leave to amend. Actionable Omission Defendant: * "To state a claim based on omission under the CLRA or UCL, 'the omission must be contrary to a representation actually made by the defendant, or an omission of a fact the defendant was obligated to disclose.'" (Demurrer, p. 9.) * "Plaintiff has not identified any specific representation 'actually made' by Google, so he cannot show that any of Google's alleged omissions were contrary to any such representation." (Ibid.; see also id. at p. 10; Reply, p. 7.) * "Because a duty to disclose extends only to facts known to the defendant, Google cannot be charged with concealing a risk the Complaint never alleges it knew." (Demurrer, p. 11; see also id. at p. 10 [claiming "the Complaint does not contain a single factual allegation that Google had previous knowledge of the issue Plaintiff experienced"]; Reply, pp. 6-7.)

Plaintiff: Defendant's omission argument fails because the Complaint pleads all three recognized California bases for a duty to disclose: exclusive knowledge, active concealment, and partial representations that are misleading absent further disclosure. LiMandri v. Judkins, 52 Cal. App. 4th 326, 336 (1997); Collins, 202 Cal. App. 4th at 255; Gutierrez, 19 Cal. App. 5th at 1258; Saini v. Sutter Health, 80 Cal. App. 5th 1054, 1061 (2022). The Complaint alleges that Google knew Drive users were experiencing unexpected file deletion caused by a sync bug; that Google did not disclose that risk in its subscription advertising, user interface, or purchase flow; that Google continued selling subscriptions to paying users without warning; and that Google simultaneously represented Drive as secure and safe. (Compl.

P.P. 15-17, 25-38, 55-56, 69.) Those allegations readily state an omission claim. *** Defendant's attempt to split hairs between "permanent deletion" and movement to Trash fares no better. The material fact Plaintiff alleges Google omitted is not limited to irrevocable deletion in a metaphysical sense; it is the risk that users' files could be silently removed from their active storage location, moved into Trash without warning, and not fully restored to their prior locations despite Google's intervention. (Compl.

P.P. 19-24, 29(c), 32, 34-38, 56-57, 64-69.) At

the pleading stage, that allegation is more than sufficient. For a consumer purchasing paid cloud storage, the distinction between permanent loss and undisclosed mass trashing of active files with incomplete restoration is not dispositive to materiality or deceptiveness. Either way, the service has failed to provide the secure preservation of stored files that Google allegedly represented. Engalla v. Permanente Medical Group, Inc., 15 Cal. 4th 951, 977 (1997) (material facts are those to which a reasonable person would attach importance in deciding how to act).

Defendant also insists Plaintiff failed to plead Google knew of "the specific issue" Plaintiff experienced. That argument improperly demands proof, not notice pleading. The Complaint alleges that, in November 2023, Google acknowledged a "sync bug" causing users' Drive files to be "suddenly deleted without explanation," that Google admitted users were facing a "bug" resulting in deleted Drive files, and that Google did not warn users of this risk before it occurred. (Compl. P.P. 15-17.) Plaintiff further alleges these public statements "confirm that Google knew Drive file deletion was occurring but failed to warn users, including paying subscribers." (Compl.

P. 17.) From those allegations, the Court must draw the reasonable inference that Google knew of a material risk of sudden file deletion or displacement affecting Drive users and nevertheless failed to disclose it. Blank, 39 Cal. 3d at 318; Boschma, 198 Cal. App. 4th at 248. Defendant's contrary inference-- that the known bug must have been categorically unrelated to Plaintiff's mass trashing event-- cannot be adopted on demurrer. (Opposition, pp. 8-9; see also id. at p. 10.) The Court agrees with Plaintiff.

Plaintiff relies on paragraphs 15 through 17, 25 through 38, 55 through 56, and 69. (See id. at p. 8.) Paragraphs 15 through 17 aver that Defendant knew about the alleged deletion issue by at least November 2023, months before Plaintiff's files allegedly were deleted in May 2024. (See Complaint, P.P. 15-17, 19.) Paragraphs 17 and 25 through 27, 29, 32, 34 through 37 allege that Defendant knowingly failed to warn customers about the issue. (See id. at P.P. 17, 25-27, 29, 32, 34-37.) The Court finds that the allegations allege ultimate facts that suffice to put Defendant on notice.

Further details should be gleaned via discovery. Defendant's "permanent deletion" argument does not change the result. According to the complaint, Plaintiff's files were moved to Drive's trash folder, and most of them are still there today, "despite numerous communications with and supposed fixes sent by" Google. (Id. at P. 24; see also id. at P.P. 19-23.) The implication is twofold - Defendant has been unable to fix the problem, and the files either cannot be accessed or are insecure. Whether and how storage of the files in the trash folder creates a lack of access or insecurity is a factual matter.

This portion of the demurrer is overruled. Reliance Defendant: * "Plaintiff does not allege with reasonable

particularity that he relied on any misrepresentation, which is required under both the CLRA and the UCL." (Demurrer, p. 11; see also id. at p. 12; Reply, p. 8.) * "[T]he Complaint nowhere alleges that Plaintiff would not have purchased a Drive subscription had Google disclosed the risk that his files could be reversibly moved to the Trash folder--the only issue he says he experienced." (Demurrer, p. 12; see also Reply, pp. 8-9.) Plaintiff: . . . Plaintiff alleges that he "purchased a Drive subscription enticed by Defendants' advertising that it was a secure cloud storage for Plaintiff's files" (Compl.

P. 5), that he purchased the paid subscription "to obtain secure, cloud-based data storage" (Compl. P. 10), that Plaintiff and the Class "relied upon the false and fraudulent representations made by Defendants regarding the safety of their files in Drive" (Compl. P. 30), that they "directly and/or indirectly relied upon Defendants' false representations regarding the safety of their files in Drive" (Compl. P. 31), and that the omitted truth would have mattered to the purchase because no reasonable consumer would have subscribed had Google disclosed it (Compl.

P. 56). Those are not abstract allegations of some floating "factual nexus"; they directly tie Plaintiff's transaction to Google's challenged security representations and omissions. *** The omission theory is also adequately pleaded. In omission cases, reliance may be inferred when the omitted fact is material. Daniel, 806 F.3d at 1225. That principle fits this case exactly. Plaintiff alleges Google failed to disclose that active subscribers' files could be suddenly deleted or moved to Trash without warning because of a known bug, and alleges that had the truth been disclosed he would not have purchased the subscription or would have paid less. (Compl.

P. 56.) Because the omitted risk goes to the central purpose of a paid cloud-storage service, reliance is plausibly inferred. Kwikset, 51 Cal. 4th at 322-23, 326; Engalla, 15 Cal. 4th at 977. (Opposition, pp. 11-12.) The Court agrees with Defendant in part. To reiterate, the misrepresentation allegations fall short. Necessarily, the corresponding reliance allegations also fall short by virtue of being connected to ambiguous, non-actionable representations. The omission theory is a different story.

Paragraph 56 alleges that "no reasonable consumer, including Plaintiff and the Class, would purchase a subscription had they known that the data they saved on Drive are not secure and these could be deleted without warning." (Complaint, P. 56.) The allegation states an ultimate fact of reliance and affords notice. (See also Opposition, p. 12 [disputing Defendant's "permanent deletion" argument].) This portion of the demurrer is sustained with leave to amend in part and overruled in part. "Good" or "Service"

Defendant contends "Drive is not a covered 'good' or 'service[]'" under the CLRA. (Demurrer, p. 13; see also id. at p. 14; Reply, p. 9.) Plaintiff maintains that Drive qualifies as a "service." (See Opposition, pp. 12-14; cf. Complaint, P. 50 [alleging that "Drive subscriptions are 'goods'"].) The Court agrees with Defendant. The CLRA covers any "transaction intended to result or that results in the sale or lease of goods or services to any consumer[.]" (Cal. Civ. Code Sec. 1770, subd. (a).) Paragraph 10 - which does not appear in the body of Plaintiff's CLRA claim - says "Drive is a service from Google that allows users to store files online and access them anywhere using the cloud." (Complaint, P. 10; cf. id. at P.P. 49-58 [merely alleging that Drive is a good].) "'Services' means work, labor, and services for other than a commercial or business use, including services furnished in connection with the sale or repair of goods." (Cal.

Civ. Code Sec. 1761, subd. (b).) Several federal courts applying California law have recognized, generally, that "software [] is not a service for purposes of the CLRA." (Ferrington v. McAfee, Inc. (N.D. Cal. Oct. 5, 2010, No. 10-CV-01455-LHK) 2010 WL 3910169, at *19 [evaluating a monthly subscription to a software program].) Indeed, one of those courts remarked that "it was 'unaware of even one case' holding that software is a CLRA service." (Reply, p. 9 [quoting Rojas-Lozano v. Google, Inc. (N.D.

Cal. 2016) 159 F.Supp.3d 1101, 1117].) To be sure, Plaintiff cites none. (See Opposition, pp. 13-14 [citing Bodenburg v. Apple, Inc. (9th Cir. 2025) 146 F.4 th 761, a case that does not analyze the "service" issue].) The Court finds, on balance, that the dearth of supporting authority weighs against Plaintiff's position. And another factor buttresses this conclusion. Plaintiff seems to allege that he partially used Drive for business. (See Complaint, P.P. 18 [stating that Plaintiff "relied on his Drive subscription for important personal and business information"], 21 [stating that a "screenshot taken directly from Plaintiff's Google Drive delete folder shows numerous deleted documents, including business records, tax documents, spreadsheets, and PDFs"], 23 [stating that many of the deleted files "were mission-critical documents" that Plaintiff "relied on for business "], emphasis added.)

In contrast, "service" equals "work, labor," or a "service for other than a commercial or business use." (Cal. Civ. Code Sec. 1761, subd. (b), emphasis added.) The Court doubts whether Plaintiff can get around this "fact." This portion of the demurrer is sustained with leave to amend. Venue Affidavit Defendant claims "Plaintiff has not complied with the [CLRA's] affidavit requirement." (Reply, p. 10; see also Demurrer, p. 4 n.2.) This issue is uncontested. This portion of the demurrer is sustained with

leave to amend. (Higginson v. Kia Motors America, Inc. (2026) 118 Cal.App.5 th 316, 352-353 ["The CLRA requires that a plaintiff file, 'concurrently with the filing of the complaint, . . . an affidavit stating facts showing that the action has been commenced in a' proper venue. [Citation.] 'If a plaintiff fails to file the [required] affidavit . . ., the court shall . . . dismiss the action without prejudice.' [Citation.] [P.] . . . On remand, the trial court is directed to vacate its order sustaining Kia's demurrer without leave to amend as to the venue affidavit, and to enter a new order sustaining the demurrer with leave to amend as to the venue affidavit."], emphasis in original.) | Home -->)" -->