Richard Haynie, et al. v. Google LLC, et al.

However, during that time he has been routinely denied advertisements for insurance, banking, and other financial opportunities on Defendants’ online platforms because he is an older person and because Defendants and advertisers on Defendants’ online platforms excluded Haynie and other older Californians from receiving the advertisements. (Id.) Haynie alleges that he provided his date of birth to Defendants because he was required to do so when registering an account. (SAC, ¶¶ 74-75.) He further alleges that Defendants used his date of birth information for targeted advertising which resulted in him being unable to view insurance and banking ads for products that he would have been interested in, including advertisements from Amica Insurance and BMO Alto, and that on information and belief, he did not see those advertisements in a different form. (SAC, ¶¶ 73-84.)

Haynie states that because he was unable to see those ads, he did not learn of services he was searching for and was excluded from cost savings. (SAC, ¶ 81.)

At the time of the filing of the First Amended Complaint, Adler Galloway was a 63-year-old woman, who has used and interacted with Defendants’ online platforms to learn about a range of information, including information on insurance, banking, and other financial opportunities while logged into her Google and Gmail accounts. (SAC, ¶¶ 22-24.) During the past three years, Adler Galloway has owned a car for which she has car insurance, and has been routinely denied advertisements for insurance, banking, and other financial opportunities on Defendants’ online platforms because she is an older person and because Defendants and advertisers on Defendants’ online platform excluded Adler Galloway and other older Californians from receiving advertisements for insurance, banking, and other financial opportunities services she

2 was interested in, including for specific services like Nerdwallet and Lemonade. (SAC, ¶¶ 25, 92, 96.) She further alleges that Defendants used her date of birth information for targeted advertising which resulted in her being unable to view ads for products that would have offered her a financial benefit, including an advertisement for The Zebra for car insurance comparisons and an age-targeted advertisement for State Farm for car insurance. (SAC, ¶ 91.) Adler Galloway states on information and belief that she did not see those advertisements in a different form. (Id.) Adler Galloway states that because she was unable to see those ads, she did not learn of services she was searching for and was excluded from cost savings. (SAC, ¶ 93.)

Plaintiffs allege that Defendants use “Sponsored” results or paid ads to display search results to users in their Google Search and on YouTube. (SAC, ¶¶ 37-38.) Defendants do not show the same results to older users that they show to younger people because advertisers direct Defendants not to show their paid ads to people above a certain age range and Defendants have implemented the direction. (SAC, ¶¶ 39- 41.) Plaintiffs further allege that the Google Display Network (“Google Display”) provides a way for advertisers to reach potential customers across 35 million websites and apps. (SAC, ¶ 42.)

Through Google Display, an advertiser pays Defendants to display its advertisement on various websites or to Defendants’ users when they use YouTube or Gmail, Defendants pay websites to host the advertisements that Google Display displays on those websites. (Id.) Google Display does not show the same result to each user because the advertisers had directed Defendants not to show its paid ads to people above a certain age range and Defendants have implemented that direction. (SAC, ¶ 43.)

Based on the foregoing, Haynie initiated this action on August 30, 2024, which asserts claims for (1) age discrimination in violation of Unruh Civil Rights Act (Civil Code, §§ 51, 52, subd. (a)); and (2) age discrimination in violation of Civil Code § 51.5 and 52, subdivision (a)). On January 29, 2025, Plaintiffs filed the FAC, which added Adler Galloway as a plaintiff. On November 5, 2025, Plaintiffs filed the SAC, which added facts about Plaintiffs’ injuries.

II. DEMURRER

A.

Legal Standard

The function of a demurrer is to test the legal sufficiency of a pleading. (Trs. Of Capital Wholesale Elec. Etc. Fund v. Shearson Lehman Bros. (1990) 221 Cal.App.3d 617, 621.) Consequently, “[a] demurrer reaches only to the contents of the pleading and such matters as may be considered under the doctrine of judicial notice.” (Mathews v. Becerra (2019) 8 Cal.5th 756, 762, internal citations and quotations omitted; see also Code Civ. Proc., § 430.30, subd. (a).) The court in ruling on a demurrer treats it “as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Piccinini v. Cal. Emergency Management Agency (2014) 226 Cal.App.4th 685, 688, citing Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

“It is not the ordinary function of a demurrer to test the truth of the plaintiff’s allegations or the accuracy with which he describes the defendant’s conduct. ... Thus, ... the facts alleged in the pleading are deemed to be true, however improbable they may be.” (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 958, internal citations and quotations omitted.)

In ruling on a demurrer, the allegations of the complaint must be liberally construed, with a view to substantial justice between the parties. (Glennen v. Allergan, Inc. (2016) 247 Cal.App.4th 1, 6.)

B. Discussion

1. Plaintiffs’ Standing

The Unruh Act acts as “a bulwark protecting each person’s inherent right to “full and equal” access to “all business establishments.” (Angelucci v. Century Supper Club (2007) 41 Cal.4th 160, 175, internal citations omitted.) The Unruh Act states that all Californians “are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” (Civ. Code § 51.) To prevail on an Unruh Act claim, a plaintiff must allege that a business’s policy discriminated against him or her, or that the plaintiff was a member of the class discriminated against. (See Midpeninsula Citizens for Fair Hous. v.

Westwood Invs. (1990) 221 Cal.App.3d 1377, 1386, rehg. den. July 31, 1990; Angelucci, supra, at 175.) The Unruh Act further states that “[n]o business establishment ... shall discriminate against, boycott or blacklist, or refuse to buy from, contract with, sell to, or trade with any person in this state on account of” a plaintiff’s protected status. (Civ. Code § 51.5.)

Defendants demur on the basis that each of the two causes of action set forth in the Second Amended Complaint fails to allege facts sufficient to constitute a cause of action pursuant to Code of Civil Procedure section 430.10. In the court’s prior order sustaining the Defendants’ demurrer to Plaintiffs’ First Amended Complaint with leave to amend, the court identified three deficiencies in Plaintiffs’ complaint: (1) that Plaintiffs did not specifically allege how Google knew Plaintiffs’ ages or dates of birth; (2) that Plaintiffs did not allege a concrete injury; and (3) that Plaintiffs did not present specific facts about the ads that they did not see due to their ages.

First, the SAC alleges that Plaintiffs were required by Defendants to disclose a date of birth (and thus an age) when creating Google and Gmail accounts, that each Plaintiff disclosed his or her date of birth, and that each was signed into a Google and Gmail account while searching on Google. (SAC, ¶¶ 74, 75, 85-86.) These facts sufficiently allege how Google knew Plaintiffs’ ages.

Defendants seek to undermine this point by arguing that Plaintiffs’ fail to allege they could not opt out of having their ages used for ads and seek judicial notice of a Google website about providing a date of birth when making an account. The court denies the request for judicial notice of Exhibit E on the basis that the document is not properly subject to judicial notice.

The court may take judicial notice of facts that are “not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452, subd. (h).) Defendants point to two cases to support the proposition that courts have taken judicial notice of website content under subdivision (h), but neither persuades this court to take judicial notice of what Defendants propose. One case takes judicial notice of a website as reference material to clarify the language of a statute. (In

4 re Gilbert R. (2012) 211 Cal.App.4th 514, 519, n.1 [referencing an article on the American Knife and Tool Institute’s website defining knife mechanisms in order to determine if a statute bars possession of a particular switchblade]). In the other case, the court did not take judicial notice in a manner analogous to this case; rather, the court took judicial notice of the JAMS arbitration rules (on its own motion) and held that it was properly subject to judicial notice because the rules were not reasonably subject to dispute and could be immediately and accurately determined by going to the JAMS website. (Vo v.

Tech. Credit Union (2025) 108 Cal.App.5th 632, 640.) It was not the case that the court wholesale took judicial notice of the JAMS webpage itself – instead, it took judicial notice of the rules governing arbitration procedures because the website could be used to verify the rules.

The webpage Defendants seeks judicial notice of is not third-party reference material: it is a document authored by and hosted on Google’s website and purports to prove facts that parties dispute (specifically, if Google users can opt out of providing a date of birth when registering accounts). Plaintiffs allege that providing a date of birth is required for making a Google account, thus arguing that a user cannot opt out. (SAC, ¶¶ 74, 75, 85-86.) Defendants allege that is false. (Demurrer, p. 11.)

Exhibit E is not a proper subject for judicial notice because it does not elucidate the matter: it does not explicitly state if Google users could opt out of providing a date of birth at the time Plaintiffs registered their accounts. The court denies the request for judicial notice of Exhibit E because the facts in the document are reasonably subject to dispute and thus not a proper subject for judicial notice.5

Moreover, the ability of the Plaintiffs to opt out of providing a date of birth during account registration is not determinative at this stage. Defendants read a requirement into precedent and this court’s prior order that users be unable to opt out of providing information to survive demurrer, but the court does not agree with this interpretation. Plaintiffs’ argument is that Google used information they provided to Google in a discriminatory fashion. Plaintiffs do not need to prove they were required to provide that information; even if they were not required to, Plaintiffs have alleged that they disclosed that information. In alleging they provided date of birth information to Google during account registration, Plaintiffs sufficiently alleged how Google knew their ages and dates of birth and thus alleged one of the facts for stating a claim of discrimination.

5 The court notes the arguments raised by Defendants in their Reply about Exhibit E being incorporated by reference in the SAC. Defendants cite a case from the Ninth Circuit Court of Appeals to support the proposition that it is appropriate for a court to consider documents incorporated by reference at the motion to dismiss demurrer stage where “plaintiff’s claim depends on the contents of a document, the defendant attaches the document to its motion to dismiss, and the parties do not dispute the authenticity of the document, even though the plaintiff does not explicitly allege the contents of that document in the complaint.” (Knievel v.

ESPN (9th Cir. 2005) 393 F.3d 1068, 1076.) Defendants also cite to two binding California cases in which the court took judicial notice of a page available in a hyperlink but neither provides guidance in the instant action. (InSyst, Ltd. v. Applied Materials, Inc. (2009) 170 Cal.App.4th 1129, 1133-1134 [taking judicial notice of a hyperlink in a filing notice email sent to parties’ attorneys in order to determine if an appeal was timely filed]; In re Forchion (2009) 198 Cal.App. 4th 1284 [taking judicial notice of a website entitled “NJweedman.com ” and everything hyperlinked on that website where petitioner sought to legally change his name to Njweedman.com].)

The court finds the federal case persuasive but nonetheless concludes that because Plaintiffs dispute the authenticity of the document, judicial notice is not appropriate under incorporation by reference doctrine. (Plaintiffs’ Opposition to Defendants’ Request for Judicial Notice, p. 10 [“Google’s Request does not state when Exhibit E was captured, whether the website in Exhibit E was unchanged during the 2021-to-present class period, or whether Google’s user registration page linked to the content in Exhibit E during the entire class period.”].)

5 The SAC corrects the second and third deficiencies highlighted in this court’s prior order. Plaintiffs’ new allegations in the SAC are that they searched for information on banking, insurance, and other financial opportunities while logged into Google accounts; that timely action is required for insurance, banking and financial opportunities; and that Plaintiffs suffered the loss of the opportunity to compete for the same opportunities as those not in their protected class. (SAC, ¶¶ 101-103.)

Precedent establishes that the loss of financial opportunities via exclusion from targeted ads can be an injury for the purposes of establishing standing under the Unruh Act. (Liapes v. Facebook, Inc. (2023) 95 Cal.App.5th 910, 921 (Liapes) [finding that Plaintiff “actually suffered discrimination” because “she was deprived of information regarding insurance opportunities despite being ready and able to pursue those opportunities.”].) The SAC also includes new allegations that there were specific advertisements about financial opportunities that Plaintiffs did not see due to their ages, such as those of Amica Insurance, BMO Alto, The Zebra, and State Farm, that on information and belief, they did not receive parallel ads with the same information, and that they lost out on financial benefits due to not seeing those ads. (SAC, ¶¶ 73-84, 91, 93.)

Plaintiffs, like the plaintiff in Liapes, identified several insurance ads they did not receive because they were “expressly outside the ... parameters for age ... thus requiring [them] to independently search for insurance opportunities.” (Liapes, supra, 95 Cal.App.5th at p. 923.) Plaintiffs have sufficiently alleged similar enough facts to Liapes to also have standing.

2. Arbitrary and Invidious Standard

Defendants argue in their Demurrer that Plaintiffs failed to allege that Defendants’ conduct is arbitrary and invidious discrimination within the meaning of the Unruh Act, and moreover that their targeted advertising is guided by legitimate business interests.

The Unruh Act prohibits “only arbitrary, invidious or unreasonable discrimination.” (Javorsky v. Western Athletic Clubs, Inc. (2015) 242 Cal.App.4th 1386, 1395, quoting Sargoy v. Resolution Trust Corp. (1992) 8 Cal.App.4th 1039, 1043, emphasis in original.) An otherwise prohibited “discriminatory practice” will be upheld as reasonable, and therefore not arbitrary, “when there is a strong public policy in favor of such treatment.” (Candelore v. Tinder, Inc. (2018) 19 Cal.App.5th 1138, 1153, internal citations omitted.) For example, “exclud[ing] children from bars or adult bookstores because it is illegal to serve alcoholic beverages or to distribute ‘harmful matter’ to minors...is not arbitrary because it is based on a ‘compelling societal interest’ and does not violate the Act.” (Koire v. Metro Car Wash (1985) 40 Cal.3d 24, 31, internal citations omitted.)

Defendants argue that there is a strong public policy in favor of targeted advertising based on age, pointing to statutes and regulations contemplating or requiring different treatment in insurance policies based on age. (Code Regs. tit. 10, § 2248.37; Ins. Code §§ 11628.3, subd. (a), 10509.8, subd. (a).) However, these statutes support the proposition that businesses can treat customers differently based on age with respect to pricing. Plaintiffs do not challenge differential pricing based on age – rather, they challenge differential advertising based on age.

Plaintiffs argue that because of age, they lost financial opportunities due to not seeing the same ads as others not in their protected class. (SAC, ¶¶ 81, 91.) Thus, these statutes do not foreclose the claims in this case. Defendants also argue that there are legitimate business interests in protecting investments in advertising, but “a business’s interest in maximizing profits is insufficient to justify discrimination based on an individual’s personal characteristics.” (Candelore, supra, at p. 1154, internal citations omitted.)

The SAC’s

6 allegations do not compel the finding that there is a public policy reason why older consumers searching for information about insurance, banking, and other financial products should be treated differently from younger consumers.

Defendants seek judicial notice of Exhibits A through D to Defendants’ Request for Judicial Notice in Support of Demurrer. Defendants state that Exhibit A is a copy of Ethos Life Insurance’s webpage entitled “Our Online Life Insurance Policies.” Defendants state this document is publicly available and include a link to a webpage, but following the link leads to a 404 error message. Because Exhibit A is evidently not a publicly available document, the court denies Defendants’ request for judicial notice of Exhibit A.

As for Exhibits B through D, Defendants seek judicial notice of those documents “as examples of the simple, uncontroversial fact that companies that offer insurance, banking, and other financial services often treat customers differently based on their age... illustrat[ing] the obvious point that people in different age groups have different insurance, banking, and financial needs and preferences.” (Defendants’ Reply in Support of Request for Judicial Notice, p. 1, internal citations omitted). The court grants Defendants’ requests for judicial notice of Exhibits B through D to Defendants’ Request for Judicial Notice In Support of Demurrer only for the fact of each Exhibit’s existence and not for the truth of the contents of the Exhibits, as “[t]he contents of ...

Web sites ... are ‘plainly subject to interpretation and for that reason not subject to judicial notice.’” (Ragland v. U.S. Bank Nat. Assn. (2012) 209 Cal. App. 4th 182, 194, internal citations omitted.) The court takes judicial notice of the fact that some banking, insurance, and other financial services have different products tailored for different age groups. The court does not take judicial notice of the fact that people in different age groups have different insurance, banking, and financial needs and preferences, as that fact is not proven by Exhibits B through D; Exhibits B through D do not show what customers need or prefer, but rather what some businesses offer some customers.

Nevertheless, as explained above, the fact that some banking, insurance, and other financial services treat some customers differently with respect to pricing does not foreclose Plaintiffs’ claims because Plaintiffs challenge differential advertising, not differential pricing.

Finally, although the Liapes court did not address the issue of arbitrary and invidious discrimination, it nonetheless demonstrates that a plaintiff can allege an Unruh Act violation by presenting facts analogous to the instant action. In Liapes, the court stated that: “on demurrer, the critical issue here is whether Liapes sufficiently alleged Facebook’s ad platform discriminates against a protected class, such as women and older people, even if in pursuit of those legitimate business goals. We conclude she has.” (Liapes, supra, 95 Cal.App.5th at p. 925.)

Defendants have not shown that the alleged discrimination is not arbitrary and invidious as a matter of law such that the demurrer can be sustained on this ground.

3. Immunity Under United States Code, Title 47, Section 230

Defendants argue in their demurrer that Plaintiffs’ claims are barred by section 230 of Title 47 of the United States Code (“Section 230”). Defendants argue in their demurrer with respect to Section 230 liability that “what matters is whether Google’s neutral tools, available to advertisers around the world, can be used only unlawfully” or whether Google specifically encouraged advertisers to use those tools unlawfully. (Defendants’ Reply in Support of Demurrer, p. 10).

Generally, websites cannot be held liable for content created by third parties, including in state court. (47 U.S.C. § 230(c)(1); 47 U.S.C. § 230(e)(3).) Websites cannot disclaim liability from discriminatory content on their websites where that website is an “information content provider – that is, someone ‘responsible in whole or in part, for the creation or development’ of the content at issue.’” (Fair Hous. Council v. Roommates.com, LLC (9th Cir. 2008) 521 F.3d 1157, 1163 (Fair Hous. Council), quoting 47 U.S.C. § 230(f)(3).) In assessing if a website has acted as an “information content provider,” the court determines if that website’s actions “contribute[d] materially to the alleged illegality of the conduct.” (Vargas v. Facebook, Inc. (9th Cir. Oct. 13, 2023, No. 21-16499) 2023 U.S. App. LEXIS 27288, quoting Fair Hous. Council, supra, at p. 1168.)

In Vargas, the Ninth Circuit Court of Appeals found Facebook liable for content posted on its platform because the platform “identified persons in protected categories and offered tools that directly and easily allowed advertisers to exclude all persons of a protected category.” (Vargas, supra, at *9.) The court determined that Facebook “contributed materially” to ads on its platform by allowing advertisers to exclude persons in a wide range of categories, holding: “whether by the user’s direct selection or by sophisticated inference, Facebook determines the user’s membership in a wide range of categories, and Facebook permits housing advertisers to exclude persons in those categories.” (Id. at *7.)

Plaintiffs allege that the Google Ads platform requires advertisers to identify the audience of the ad, including “the age range of users who will receive their ads,” and that “Defendants encourage, recommend, and permit advertisers to narrow the age demographic audience of their ads so that only people within a certain age range will receive certain ads and people outside that age range will not receive those ads.” (SAC, ¶¶ 44, 45.) Like in Vargas, Google created categories or demographics that advertisers could select to advertise, assigned users to the categories, and then gave advertisers the options to exclude some users based on those categories.6 Plaintiffs have alleged sufficient facts to support a claim that Google acts as a co-developer with respect to some ads in a manner similar to Facebook in Vargas.

Defendants also argue that their tools can be used neutrally or unlawfully, and that Defendants should not be liable for bad actors’ unlawful use of their tools. The court in Vargas was unpersuaded by a similar argument made by Facebook that its tools were used neutrally or not unlawfully by other advertisers in other contexts: “a patently discriminatory tool offered specifically and knowingly to housing advertisers does not become ‘neutral’ within the meaning of this doctrine simply because the tool is also offered to others.” (Vargas, supra, at *10.)

Plaintiffs allege that Google encourages advertisers using Google Ads to use age-based demographic targeting. (SAC, ¶¶ 56-58.) While Plaintiffs do not allege that Google encouraged specifically insurance, banking, and other financial advertisers to use age-based demographic targeting, they do allege that Google knew that its tools could be used unlawfully in the housing, employment, and certain consumer financial contexts and took action to prevent those unlawful uses. (Id., ¶¶ 60-62). By alleging that Google knew its neutral tools could be used

6 Defendants argues that this case must be distinguished from Vargas because Google users can opt out of being assigned to categories based on age. As explained above, regardless of if that fact is true, Plaintiffs have alleged that they did not opt out and disclosed their age and then experienced discrimination, thus sufficiently pleading that they experienced discrimination.

8 unlawfully in similar contexts and chose not to act in this context, Plaintiffs have sufficiently alleged that like in Vargas, Google offered its tools “specifically and knowingly” to advertisers who could discriminate.

As with Defendants’ request for judicial notice of Exhibit E, the court denies the Defendants’ request for judicial notice of Exhibit F on the basis that the document is not an appropriate subject for judicial notice. Defendants state in their Reply in Support of Request for Judicial Notice that “Exhibit F reflects that Google prohibits advertisers from targeting ads in any way that does not comply with applicable law.” Plaintiffs dispute this fact. (Plaintiffs’ Opposition to Defendants’ Request for Judicial Notice, p. 10-11 [“just because Google’s website states that advertisers are required not to discriminate in their advertising does not mean that Google actually requires such compliance or prohibits it.”].) The facts in the document are reasonably subject to dispute and thus not a proper subject for judicial notice.

Defendants have not shown that the Plaintiffs’ claims are barred by Section 230 such that the demurrer can be sustained on this ground.

III. CONCLUSION

Defendants’ demurrer is OVERRULED.

The court will prepare the Order.

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