12345678910111213141516171819202122232425262728Plaintiffs dispute that the Disclaimer is present in their contracts. Complaint ¶ 3. In its
moving papers, Defendant provides copies of the Advertising Terms and Conditions in effect atthe times Plaintiffs agreed to advertise on Defendant’s website. The Advertising Terms andConditions contain the Disclaimer. Plaintiffs have not disputed the authenticity of thesedocuments, and their opposition papers respond to the Disclaimer as if it were included in their contracts.3
Case No. C 09-3043 JF (HRL)ORDER GRANTING IN PART, DENYING IN PART MOTION TO DISMISS, ETC.(JFEX1)
disclaimer:I [PLAINTIFF] UNDERSTAND THAT THIRD PARTIES MAY GENERATEIMPRESSIONS, CLICKS OR OTHER ACTIONS AFFECTING THE COST OF THEADVERTISING FOR FRAUDULENT OR IMPROPER PURPOSES, AND I ACCEPTTHE RISK OF ANY SUCH IMPRESSIONS, CLICKS, OR OTHER ACTIONS.FACEBOOK SHALL HAVE NO RESPONSIBILITY OR LIABILITY TO ME INCONNECTION WITH ANY THIRD PARTY CLICK FRAUD OR OTHER IMPROPER ACTIONS THAT MAY OCCUR Howitson Decl. Exhs. 1-2 at “Indemnification” section (“the Disclaimer”).
Plaintiffs allege they have been charged for “invalid clicks” and “fraudulent clicks”.Complaint ¶¶ 51, 63, and 71. The complaint attributes these clicks to “(a) technical problems;(b) system implementation errors; (c) various types of unintentional clicks; (d) incomplete clicksthat fail to open the advertiser’s web page; and (e) improperly recorded or unreadable clicksoriginating in some cases from an invalid proxy server or unknown browser types.” Complaint ¶4. The complaint describes “click fraud” as the “result of a competitor clicking on anadvertiser’s ad in order to drive up the cost of an ad or deplete the competitor’s budget for placing ads.” Complaint ¶ 36.Plaintiffs filed the instant action on July 7, 2009, seeking relief under California’s Unfair Competition Law (“UCL”), Cal. Bus. Prof. Code § 17200
.; remedies for breach of contractand the implied covenant of good faith and fair dealing; a judicial declaration of the rights andobligations of the parties under the subject contracts; and remedies for unjust enrichment.
I. MOTION TO DISMISSA.Legal standard
“Dismissal under Rule 12(b)(6) is appropriate only where the complaint lacks acognizable 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). For purposes of a motion to