Rodriguez v. Google LLC 20-cv-04688-RS (N.D. Cal. Jan. 3, 2024) prosecution of this matter on behalf of the proposed classes. Thus, this requirement is satisfied. II. 23(b)(3) Rule 23(b)(3) certification requires Plaintiffs to satisfy two conditions: predominance and superiority. See Fed. R. Civ. Pro. 23(b)(3). To meet the predominance requirement, Plaintiffs do not need to show an absence of individual claims, only that the claims that may be resolved classwide predominate over individual ones. See Dukes, 564 U.S. at 359. “Considering whether ‘questions of law or fact common to class members predominate' begins, of course, with the elements of the underlying cause of action.” Erica P. John Fund, Inc. v. Halliburton Co., 563 U.S. 804, 809 (2011). The second requirement under 23(b)(3) is that class treatment is the superior method of fairly and effectively adjudicating the instant controversy. Fed.R.Civ.P. 23(b)(3). 8 The parties' primary dispute concerns whether common or individual questions predominate. Plaintiffs argue they do because the central issues in this action, specifically what Google represented and the technical functioning of Google's SDK technology, “turn on common questions” and “are subject to common proof.” Class Cert. Mot. at 9. Conversely, Google argues, first, that the averred harms are individualized, and even if not, they cannot be determined on a class-wide basis. Google further argues that even if both harms and damages can be determined class-wide, it would thereby be unfairly precluded from asserting its implied and explicit consent *8 defenses. It insists that Plaintiffs failed to identify a single California mass torts case that certified a class for a “privacy tort claims (or CDAFA)” because “these claims are inherently personal, and the nature, extent, and frequency of injury and damage are highly individualized issues that are typically unsuitable for class treatment.” Opp. at 12; but see McDonald v. Kiloos ApS, 385 F.Supp.3d 1022, 1034 (N.D. Cal. 2019) (a putative class action with intrusion upon seclusion and invasion of privacy claims, in which the Court held that Plaintiffs had adequately pleaded the offensiveness element); see also Order Concerning: (1) The Parties' Expert Exclusion Motions; and (2) Plaintiffs' Class Certification Motion, Csupo, et al. v. Alphabet, Inc., 19CV352557 (Super. Ct. Santa Clara Oct. 26, 2023) (certifying a class in which the plaintiffs, under theories of conversion and quantum meruit, alleged that the defendant used their cellular data allowances without consent).2 Thus, according to Google, common questions fail to predominate over individual ones. 2 Left unsaid is that Google similarly cannot point to developed California mass torts case authority in the privacy context in which certification was denied. Absence of a case in a new area of law is not surprising. The intrusion upon seclusion and invasion of privacy claims are increasingly discussed together because they entail similar elements, “[a]lthough the claims do continue to exist as separate claims with technically distinct elements.” McDonald v. Kiloo ApS, 385 F.Supp.3d 1022, 1033 (N.D. Cal. 2019). Combined, these claims ask whether “(1) there exists a reasonable expectation of privacy, and (2) the intrusion was highly offensive.” In re Facebook, Inc. Internet Tracking Litigation, 956 F.3d 589, 601 (9th Cir. 2020) (hereinafter “Facebook Tracking”). a. Reasonable expectation of privacy Under both the intrusion upon seclusion and invasion of privacy claims, the question of whether a reasonable expectation of privacy exists is an objective one. See Shulman v. Grp. W. Prods., Inc., 18 Cal.4th 200, 232 (1998). Nonetheless, this objective test may permit examination of “the surrounding circumstances” to ascertain whether a person had a reasonable expectation of privacy. Opp at 13. “California law does not require Plaintiffs to prove subjective 5