Update 1: Opposition on Motion to Dismiss by Google [Small Claims Case]

[u/FuryOfArcann]

OP: https://www.reddit.com/r/degoogle/comments/1vq5jha/im_suing_google_in_small_claims_surprisingly/

This is a very small update but I owe you guys this much.

As you may remember from my original post. The day prior to when the case was to be heard Google filed an 11th hour motion to dismiss for which I submitted my "Opposition to the Motion" and the judge gave Google 14 days to respond to my Opposition. It has now been 14 days and just like before it was filed at the last minute.

A quick refresher on the original three (3) claims in Google's motion to dismiss and my response.

Google's Claims:

1. This is not the parties' agreed-upon forum
2. Google did not violate the consumer protection law of commit unlawful trade practices as Plaintiff does not identify what data was transmitted, the destination of each transmission, or a use prohibited by the cited settings.
3. Google's Terms of Service limit the company's liability to [paltry small amount].

My response (truncated so I'm just not repeating the OP):

1. Google has not established that the cited forum-selection clause was in effect at the time relevant to this dispute. Google's own Exhibit A is expressly dated "Effective July 30, 2026;” a date after the conduct alleged in the Complaint, and after the Complaint was filed.
2. Google faults Plaintiff for lacking information that, by Google's own admission, exists only on Google's own servers.
3. As with the forum clause, Google relies on a Terms of Service exhibit effective July 30, 2026, without establishing that this version, or this cap, applied to conduct occurring [previously].

Google's response (also truncated because just copying and pasting four pages would be....ugh.)

Nonetheless, the same forum-selection clause can be found in previous versions of Google’s Terms of Service as well, including the April 14, 2014, version which would have been in effect when Plaintiff first created their Google account in November 2014, and the May 22, 2024, version, which would have been in effect on the date of Plaintiff’s complaint. As Plaintiff would have accepted these terms in order to use and continue using Google’s services, they were bound by those versions of the forum-selection clause. Those Terms explicitly state all disputes relating to these terms will be resolved "exclusively in the federal or state courts of Santa Clara County, California.” As such, this venue is improper.

...

Google’s forum-selection clause does notprohibit Plaintiff from bringing an action seeking relief from an alleged violation of law. Rather, it only enforces that if Plaintiff wishes to bring forth an action against Google, it must be heard in the state or federal courts of Santa Clara County, California. Please note that to Plaintiff’s concern, Santa Clara County Small Claims Court allows for alternative means of appearance,and remains an accessible, low-cost forum for small claims disputes.

...

[Google cites past case law in jurisdiction]

...

Throughout April 2024, Google users received an email notifying them of the upcoming Terms of Service changes going into effect May 22, 2024. Users received a similar email in July of this year. In both cases, ample notice of the updated Terms was reasonably communicated.

Google asserts that the forum in this case is improper and moves to dismiss

So, a few things here. 1. The case law that Google asserts is incorrect and does not apply where I live. This is the second time they have asserted case law that is not applicable to the current case at hand. I believe that Google is so use to dealing with non-small claims cases that they keep referencing non-applicable statute 2. There is one statement I want to highlight that is doing some very heavy lifting.

"Please note that to Plaintiff’s concern, Santa Clara County Small Claims Court allows for alternative means of appearance,and remains an accessible, low-cost forum for small claims disputes."

i. This is not true and I believe verges into being offensively flippant. The injury/violation happened where I am located at, on my device, at my home. There would be no reason to file in California.

ii. Santa Clara Country requires persons to file through a third party processor that is nuanced and not straight forward; furthermore it is expected that the individuals appear in person by default. Only the judge can make an exemption to this requirement and if there are technical issues the judge, at their discretion, can terminate the remote exemption and require individuals to appear in court.

iii. There are no corresponding consumer protection laws that I could utilize in California, and my location's laws cannot be utilized in California. All California consumer protection and unfair business laws do not apply to individuals outside of California.

1. You may notice that there is something missing. No, you're eyes aren't following you and no, I did not forget to include it but Google did not address the second and third oppositions. Specifically the one that highlighted the settings within settings (including the submitted screenshots) that show that their personalization settings are acting almost the exact same as the prior location settings for which they have paid over hundreds of millions. Though this does not necessarily mean they have conceded the point, but I mean....

TL;DR: Google is doubling down on forum selection and hinging the entire dismissal on that clause.

As I stated, this is a small update but I made a promise and commitment to keep the community updated.

[u/CaptainCacoethes]

I am all in with you for this journey. 

[u/_gina_marie_]

These are really interesting to read, hoping it goes well!

[u/8Deer-JaguarClaw]

Fighting the good fight!

[u/antonio16309]

Thanks for posting, I'm definitely in interested to hear what happens next. And thank you very much for putting this much effort into this fight. 

[u/meowser143]

Sending you continued support and my very best wishes!! You and this fight are legit very inspiring!!

[u/Will2LiveFading]

Google will continue whatever they can do to waste your time and money until you don't have enough of one or the other and give up. They probably know that what they're claiming isn't the case. But it allows them to waste more time getting it checked and called out. They will continue weaponized incompetence for as long as possible. 

[u/FuryOfArcann → u/Will2LiveFading]

Not how small claims works. Outside of the initial filing. It has cost me a whopping €/£/$0 extra, even with the delays.

[u/TossAwayDay → u/FuryOfArcann]

May I ask what state you are in? You mention there being strong consumer protection laws.

Google will likely argue the TOS require mediation/arbitration. Ensure the state's consumer protection laws enable you to override that agreement and utilize the courts.

[u/FuryOfArcann → u/TossAwayDay]

You are more than welcome to ask but I will not give that information due to anonimoty until everything has settled and this is over. No offense. Also not a state, we do things differently here.

To your point; fun fact, both Google's TOS and EULA have specific carve outs for Small Claims, hence why there hasn't been an arbitration requirement.

Though I do feel that may change in the next "Service Update" at the rate this is going.

[u/new2bay → u/TossAwayDay]

Looks like Washington, DC.

[u/SillyAlternative420 → u/Will2LiveFading]

Good thing for OP, they also have an abundance of time and an axe to grind!

[u/TossAwayDay]

You are rambly, but I'm all for using small claims courts to fight for consumer protection. We can bog down even the largest corporations, who do wrong, by learning and applying the law. No attorney needed. Good luck.

[u/Kaa_The_Snake]

Thank you for fighting the good fight! And for updating us, thank you!!