Rodriguez v. Google LLC 9 20-cv-04688-RS (N.D. Cal. Jan. 3, 2024) expectation.” *9 Opperman v. Path, 13-cv-00453JST, 2016 WL 3844326 at *11 (N.D. Cal. July 15, 2016) (discussing the elements of the intrusion upon seclusion tort); see also Hill v. Natl. Collegiate Athletic Assn., 7 Cal.4th 1, (1994) (holding that, for the state constitutional privacy cause of action, “a reasonable expectation of privacy is an objective entitlement founded on broadly based and widely accepted community norms.” (internal quotations omitted)). Instead, the claim requires: “(1) intrusion into a private place, conversation or matter, (2) in a manner highly offensive to a reasonable person.” Opperman, 2016 WL 3844326 at *11 (quoting Shulman, 18 Cal.4th at 231) (emphasis in original). Google invokes Hart v. TWC to argue that individual inquiries as to whether putative class members had a reasonable expectation of privacy can defeat predominance. No. 20-cv-03842-JST, 2023 WL 3568078 (N.D. Cal. March 30, 2023). In that case, the plaintiffs averred that The Weather Channel (“TWC”) violated the California Constitution when it tracked and collected users' data and engaged in a scheme to sell that data to third parties and business partners without users' knowledge. Id. at *1. The court determined that ascertaining if users maintained a reasonable expectation of privacy required “an individualized factual inquiry” into whether they knew their affirmative responses to the permission prompts allowed TWC to engage in the averred misconduct. Id. at *10. Furthermore, the Court held that analysis of an individual user's “conduct” could also defeat predominance by manifesting “voluntary consent.” Id. (citation omitted). Here, those same considerations weigh in favor of predominance. First, the relevant “conduct” showing a lack of consent is the users' decisions affirmatively to switch off the WAA and sWAA buttons. It is not, as Google tries to argue, the fact that users continued using apps with Google's SDKs. It is unreasonable for Google to expect, as it does, that users must also stop using the many apps on their phone, after selecting sWAA to be 10 off, to show a lack of consent. This places an undue burden on everyday users who indicated their privacy preferences by turning off sWAA. Second, Google's argument places an impossible burden on Plaintiffs that would preclude injunctive relief altogether: they must stop using the many apps on their phones to avoid consenting to the wrongful conduct, unfairly undercutting standing to seek injunctive relief. *10 See infra at IV.A.II.c. Third, both the third party apps in this case and TWC in Hart provided its users with privacy disclosures when the app was opened. Separately from these disclosures, putative class members here affirmatively sought out and clicked on Google's WAA and sWAA buttons, a common act representing their privacy choices, based on Google's own ubiquitous representations. In Hart, TWC was both the app facing users and the defendant; user's reasonable expectations as to TWC's conduct was the basis of the court's decision there. By contrast, Google is the party engaging in the alleged wrongful conduct separate from the third party apps making disclosures to class members. Individual representations by the third party apps here do not outweigh Google's common representation to users for purposes of finding predominance. Despite Google's insistence otherwise, whether the amount or nature of data collected is a factspecific inquiry does not by itself defeat predominance, because the relevant question is whether the members, who shared common conduct, had an objective, reasonable expectation of privacy based on Google's representation about the sWAA button to all members under these claims. This is a question capable of resolution class-wide. b. Highly offensive conduct The second element of both claims, whether the intrusion was “highly offensive,” also warrants class treatment. Google argues this is a complex question that “requires consideration of all the circumstances of intrusion, including its degree 6