Jack Gershfeld v. Teamviewer US, Inc. ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 20 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JACK GERSHFELD, individually, and on No. 21-55753
behalf of a class of similarly situated,
D.C. No.
Plaintiff-Appellant, 8:21-cv-00058-CJC-ADS
v.
MEMORANDUM*
TEAMVIEWER US, INC.; DOES, 1 through
100, inclusive,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Argued and Submitted July 11, 2022
Pasadena, California
Before: BENNETT and SUNG, Circuit Judges, and FOOTE,** District Judge.
Plaintiff-Appellant Jack Gershfeld challenges the dismissal of his amended
complaint under Federal Rule of Civil Procedure 12(b)(6). Gershfeld alleges
Defendant-Appellee TeamViewer US violated California’s Consumer Privacy Act
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Elizabeth E. Foote, United States District Judge for the
Western District of Louisiana, sitting by designation.
and Unfair Competition Law when it automatically renewed his software
subscription without his consent. On appeal, he contends the district court erred
when it considered documents incorporated by reference that were not included
with or attached to his complaint. We have jurisdiction under 28 U.S.C. § 1291and affirm the dismissal.
We review a district court’s dismissal for failure to state a claim under a de
novo standard of review. Colony Cove Props., LLC v. City of Carson, 640 F.3d
948, 955 (9th Cir. 2011). A district court’s decision to allow documents to be
incorporated by reference is reviewed for abuse of discretion. Khoja v. Orexigen
Therapeutics, Inc., 899 F.3d 988, 998 (9th Cir. 2018).
Generally, a district court is permitted to “look only at the face of the
complaint to decide a motion to dismiss.” J.K.J. v. City of San Diego, 42 F.4th
990, 997 (9th Cir. 2021) (quoting Van Buskirk v. Cable News Network, Inc., 284
F.3d 977, 980 (9th Cir. 2002)). However, under the incorporation by reference
doctrine, a district court may consider other material as though it had been attached
to the complaint itself. Khoja, 899 F.3d at 1002. A document can be incorporated
by reference if the complaint refers to it extensively or if the document forms the
basis of the plaintiff’s claims. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir.
2003); see also Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006) (explaining the
“court may consider evidence on which the complaint ‘necessarily relies.’”).
2
The district court below did not abuse its discretion in incorporating by
reference the exhibits submitted in connection with TeamViewer US’s motion to
dismiss. The incorporated documents, which set forth the relevant terms and
disclosures of the subscription purchase and renewal, form the basis of the
transaction Gershfeld challenged in his complaint. Gershfeld’s claims necessarily
rely on the contents of the exhibits attached by TeamViewer US. The viability of
Gershfeld’s claims is dependent upon the extent and sufficiency of TeamViewer
US’s disclosures; as such, the disclosures form the basis of the claims themselves.
See Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010) (though not
referenced in complaint, billing agreement was incorporated by reference because
its terms were integral to claims in complaint).
In light of the incorporated material, Gershfeld did not plead a plausible
claim for a violation of either California’s Consumer Privacy Act or its Unfair
Competition Law, nor did he plausibly plead a claim for any violation of
California’s automatic renewal law. Gershfeld was put on notice, both initially and
thereafter, of the automatic renewal and the terms thereof; he was informed of the
software subscription price, the price increase upon renewal, the cancellation
policy, and the cancellation process. Gershfeld consented to the terms of the
purchase, which were presented in a clear and conspicuous manner, and authorized
TeamViewer US to renew his software subscription automatically.
3
The district court did not improperly weigh conflicting evidence or make
any credibility findings in favor of TeamViewer US.
Finally, we agree with the district court’s denial of leave to amend, a decision
which “is proper if it is clear that the complaint could not be saved by amendment.”
Somers v. Apple, Inc., 729 F.3d 953, 960 (9th Cir. 2013) (quoting Kendall v. Visa
U.S.A., Inc., 518 F.3d 1042, 1051 (9th Cir. 2008)).
AFFIRMED.
4