1 ANNIE MCADAMS, PC

Annie McAdams, (seeking admission pro hac vice)

2 annie@mcadamspc.com ELECTRONICALLY
Matthew S. Parmet, (CSB # 296742)
3 matt@mcadamspc.com FILED
Superior Court of California,
1150 Bissonnet County of San Francisco
4 Houston, Texas 77005
Tel.: 713-785-6262 09/06/2019
Clerk of the Court
5 Fax: 866-713-6141 BY: EDNALEEN ALEGRE
Deputy Clerk
6 KIESEL LAW LLP
Paul R. Kiesel (SBN # 119854)
7 kiesel@kiesel.law
8648 Wilshire Blvd.
8 Beverly Hills, CA 90211
Tel: 310 854 4444
9 Fax: 310 854 0812

10 SICO HOELSCHER HARRIS LLP THE GALLAGHER LAW FIRM

ANNIE MCADAMS, PC

David E. Harris (seeking admission pro hac vice) Michael T. Gallagher (seeking admission pro
11 dharris@shhlaw.com hac vice)
Louie J. Cook (seeking admission pro hac vice) mike@gld-law.com
12 lcook@shhlaw.com Pamela McLemore (seeking admission pro hac
802 N. Carancahua, Ste. 900 vice)
13 Corpus Christi, Texas 78401 pamm@gld-law.com
Tel.: 361-653-3300 2905 Sackett Street
14 Fax: 361-653-3333 Houston, Texas 77098
Tel.: 713-222-8080
15 Fax: 713-222-0066

16 Attorneys for Plaintiffs

17
SUPERIOR COURT FOR THE STATE OF CALIFORNIA
18
COUNTY OF SAN FRANCISCO
19 JANE DOES #1 through #90, sex trafficking Case No. CGC-19-574770
survivors,
20 PLAINTIFFS’ OPPOSITION TO
Plaintiffs, DEFENDANT’S DEMURRER TO
21 SECOND AMENDED COMPLAINT
v.
22
Department: 302
SALESFORCE, INC. a Delaware corporation Date: September 23, 2019
23 and a California citizen, Time: 9:30 a.m.
24 Reservation No.: 08200923-06
Defendant.
25 Complaint filed: March 25, 2019
Trial date: None
26

27

28
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PLAINTIFFS’ OPPOSITION TO DEFENDANT’S DEMURRER TO SECOND AMENDED COMPLAINT

 1 TABLE OF CONTENTS

2 I. INTRODUCTION ........................................................................................................................ 1

3 II. FACTUAL BACKGROUND ...................................................................................................... 1

4 III. ARGUMENT AND AUTHORITY ............................................................................................. 2

5 A. SUMMARY OF ARGUMENT ......................................................................................................... 2

6 B. LEGAL STANDARD..................................................................................................................... 3
7 C. SECTION 230 DOES NOT BAR PLAINTIFFS’ CLAIMS .................................................................. 4
8
1. Section 230 Not Implicated Because Salesforce Not Treated as Publisher ......................... 4
9
2. The 2018 Amendment Confirms that Section 230 Does Not Apply to Human Trafficking
10
ANNIE MCADAMS, PC

Claims........................................................................................................................................... 5
11
3. Reliance on Pre-Amendment Cases is Misplaced Because During the Time the CDA Cases
12
Were Being Decided, Congress Focused on Human Trafficking................................................. 6
13
4. Jane Doe’s Claims Are Consistent with the 2018 Amendments........................................... 7
14

15 D. PLAINTIFFS HAVE ADEQUATELY PLEAD FACTS SUPPORTING CONSPIRACY .............................. 9

16 E. PLAINTIFFS HAVE ADEQUATELY PLEAD A CLAIM UNDER THE CTVPA.................................... 9
17 F. PLAINTIFFS HAVE ADEQUATELY PLEAD A CLAIM FOR NEGLIGENCE AND NEGLIGENCE PER SE
18 11
19
1. Duty .................................................................................................................................... 11
20
2. Causation ........................................................................................................................... 12
21

22 IV. CONCLUSION .......................................................................................................................... 13

23

24

25

26

27

28
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PLAINTIFFS’ OPPOSITION TO DEFENDANT’S DEMURRER TO SECOND AMENDED COMPLAINT
 1 TABLE OF AUTHORITIES
2
CASES
3

4 Adams v. Paul, (1995) 11 Cal.4th 583, 593 ......................................................................................... 3

5 Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459 ............ 3

6 Bounds v. Sup.Ct. (KMA Group) (2014) 229 CA4th 468, 484, 177 .................................................... 3

7 Clothesrigger, Inc. v. GTE Corp., 191 Cal. App. 3d 605, 613 (Ct. App. 1987) ................................ 11

8 Crowley v. Katleman, (1994) 8 Cal.4t h 666, 690-691 ........................................................................ 3

9 Goodman v. Kennedy (1976) 18 C3d 335, 349, 134 CR 375, 384 ....................................................... 3

10 Jane Doe No. 1 v. Backpage.com, LLC,

ANNIE MCADAMS, PC

11 817 F.3d 12 (1st Cir. 2016) .............................................................................................................. 5

12 Kidron v. Movie Acquisition Corp. (1995) 40 Cal.App.4th 1571, 1581 .............................................. 9

13 Ludgate Ins. Co. v. Lockheed Martin Corp., (2000) 82 Cal.App.4th 592, 608.................................... 3

14 Marina Tenants Assn. v. Deauville Marina Development Co. (1986) 181 Cal.App.3d 122, 127........ 3
th
15 Mendoza v. Rast Produce Co., Inc., (2006) 140 Cal.App.4 1395, 1402 ............................................ 3

16 Okun v. Sup.Ct. (Maple Properties) (1981) 29 C3d 442, 460, 175 CR 157, 168 ................................ 3

17 People v. Shields (2018) 23 Cal.App.5th 1242, 1251 [233 Cal.Rptr.3d 701, 708] ............................ 10

18 Reno v. ACLU,

19 521 U.S. 844 (1997) ......................................................................................................................... 5

20 Rubin v. Islamic Republic of Iran,

21 138 S. Ct. 816 (2018) ....................................................................................................................... 8

22 Stratton Oakmont, Inc. v. Prodigy Services Co.,

23 No. 31063/94, 1995 WL 323710

24 (N.Y. Sup. Ct. May 24, 1995) .......................................................................................................... 4

th
25 Wilner y. Sunset Life Ins. Co. (2000) 78 Cal.App.4 952, 958 ............................................................ 3

26 Yates v. United States,

27 135 S. Ct. 1074 (2015) ..................................................................................................................... 4

28 Youngman v. Nevada Irrigation Dist., (1969) 70 Cal.2d 240, 245 ...................................................... 3

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PLAINTIFFS’ OPPOSITION TO DEFENDANT’S DEMURRER TO SECOND AMENDED COMPLAINT
 1 FEDERAL CASES

2
Telecommunications Act of 1996,
3 Pub. L. 104-104, 110 Stat. 56 ........................................................................................................... 5
4 Victims of Trafficking and Violence Protection Act of 2000,

5 Pub. L. 106-386 (Oct. 28, 2000) ...................................................................................................... 7

6

7 CALIFORNIA CASES

8 161 Cong. Rec. S1591 (daily ed. Mar. 18, 2015) ................................................................................. 5

9 163 Cong. Record S3977 (daily ed. July 13, 2017)

10 (statement of Sen. Portman) ............................................................................................................. 6

ANNIE MCADAMS, PC

11 H.R. Rep. 104-458 (1996) .................................................................................................................... 4

12 Human Trafficking Investigation, 114th Cong. 39 (2015) ................................................................... 5

13
OUT-OF-STATE CASES
14

15 About Classification of Laws to the Unites States Code, Office of the Law Revision Counsel,

16 http://uscode.house.gov/about_classification.xhtml ........................................................................ 8

17 Black’s Law Dictionary (9th ed.) ......................................................................................................... 4

18 Mary Graw Leary,

19 The Indecency & Injustice of Section 230 of the Communications Decency Act, 41 Harv. J.L. &
Pub. Policy 553 (2018) ................................................................................................................. 6, 7
20

21 Polaris Project, 2014 State Ratings, https://www.polarisproject.org/sites/default/files/2014-State-

Ratings.pdf ....................................................................................................................................... 7
22

23

24

25

26

27

28
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PLAINTIFFS’ OPPOSITION TO DEFENDANT’S DEMURRER TO SECOND AMENDED COMPLAINT
 1 I. INTRODUCTION
2 The Demurrer of Defendant Salesforce, Inc. (“Salesforce”) should be overruled for the

3 following reasons: 1) Plaintiffs’ Second Amended Complaint (“SAC”) provides sufficient detail of

4 the underlying events, including details of a civil conspiracy between Salesforce and Backpage; 2)

5 Section 230 of the Communications Decency Act (“CDA”) does not bar Plaintiffs’ claims; 3)

6 Plaintiffs have sufficiently pled a cause of action against Salesforce for human trafficking under the

7 California Trafficking Victims Protection Act (“CTVPA”); and 4) Plaintiffs have sufficiently pled a

8 cause of action against Salesforce for negligence and gross negligence.

9 II. FACTUAL BACKGROUND

10 Jane Does 1-90 are victims of human trafficking. SAC, at ¶¶ 114, 119. Some were minors
ANNIE MCADAMS, PC

11 during the relevant time of their trafficking.1 Id., at ¶¶ 114, 115, 119. Specifically, they were

12 trafficked on Backpage, with whom Salesforce was civilly conspiring. Salesforce knew of this and

13 still provided vital support to Backpage. Id., at ¶¶ 150-52. It did so for profits, and thus derived

14 financial benefit from causing victims to be trafficked. Id., at ¶¶ 158-163. The victims include Jane

15 Does 1-90. Id., at ¶¶ 114, 115, 119.

16 Salesforce conspired with Backpage, as Salesforce “designed and implemented a heavily

17 customized enterprise database tailored for Backpage’s operations.” SAC, at ¶¶ 9-12. At the same

18 time Salesforce entered into contracts with Backpage, Salesforce was engaged in public campaigns

19 claiming that its technology was being used to suppress human trafficking. Id., at ¶¶ 116-118. This

20 occurred despite the fact that Backpage was the leading online marketplace for commercial sex and

21 sex trafficking and had been described by The National Association of Attorneys General as a “hub”

22 of “human trafficking, especially the trafficking of minors.” Id., at ¶¶ 134-135. Salesforce’s

23 knowing participation in a conspiracy with Backpage, caused victims, including Jane Does 1-90, to

24 be trafficked, raped, and abused. Id., at ¶¶ 14-15; 174-182.

25 With knowledge of Backpage’s operations, “Salesforce continued to collect and process data,

26 which directly assisted Backpage in causing the sexual exploitation and brutal rapes of an untold

27
1
28 Plaintiffs’ SAC incorrectly contends that all Plaintiffs were minors at the time of their trafficking.

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PLAINTIFFS’ OPPOSITION TO DEFENDANT’S DEMURRER TO SECOND AMENDED COMPLAINT
 1 number of sex trafficking victims, including the Jane Does in this lawsuit.” Id., at ¶ 161. Without

2 Salesforce’s involvement, Jane Does 1-90 would not have been trafficked. Id., at ¶¶ 171-72. Jane

3 Does 1-90 bring claims against Salesforce for negligence, violations of the CTVPA, and civil

4 conspiracy.

5 III. ARGUMENT AND AUTHORITY

6 A. Summary of Argument
7 Salesforce contends that Section 230 immunizes itself and its co-conspirator Backpage from

8 human trafficking claims and therefore bars Jane Does’ claims. There are a number of reasons why

9 Salesforce’s contention should be rejected. Most conspicuously missing from the Demurrer is any

10 serious consideration of the 2018 amendments to Section 230. The enacting legislation for that
ANNIE MCADAMS, PC

11 amendment is known as FOSTA, an acronym for its title: the Fight Online Sexual Trafficking Act

12 which ought to give the Court some notion of the purpose of the amendments.2

13 The 2018 amendments were enacted to ensure that courts would no longer rule that claims
14 like Jane Does’ were barred by Section 230. None of the cases cited by Salesforce deal with the

15 effect of the amendments.3 Salesforce’s failure to confront the single most compelling argument

16 against its position speaks volumes. The contention that the CDA bars Jane Does’ claims should be

17 rejected.

18 Salesforce contends (incorrectly) that it cannot be held civilly liable under the CTVPA
19 because the “SAC does not allege that Salesforce deprived Plaintiffs or any other person of their

20 personal liberty, much less with the intent to force any such person into prostitution, labor, services,

21 or any other activity.” Dem. 14. The problem for Salesforce is that the statute at issue is broader than

22 it argues, and the conduct of Salesforce described in the SAC absolutely supports the claims under

23 the CVTPA. That same conduct supports Plaintiffs’ claims for negligence. For all the reasons

24 discussed herein, Salesforce’s Demurrer should be overruled.

25 2
The legislative history of the 2018 amendment shows that the primary reason it was passed was to express Congress’s
disapproval of the multitude of cases holding that Section 230 provided “broad immunity” to internet service providers
26
(ISPs) and to provide tools that could be used against Backpage.com in both criminal and civil litigation. In FOSTA’s
enacting clause, Congress stated its intent: that Section 230 does not bar “Federal and State criminal and civil law
27 relating to sexual exploitation of children or sex trafficking.” FOSTA, Pub. L. No. 115-164, 132 Stat. 1253 (2018).
3
It appears there are no cases interpreting the effect of the amendments. Salesforce’s Demurrer itself only refers to the
28 2018 amendment once, in a passing reference in footnote 4 at page 23.
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PLAINTIFFS’ OPPOSITION TO DEFENDANT’S DEMURRER TO SECOND AMENDED COMPLAINT
 1 B. Legal Standard
2 A demurrer tests the pleading alone and not the evidence of the facts alleged. Atascadero v.

3 Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459. All material facts

4 pleaded in the complaint and those that arise by reasonable implication are deemed admitted by the

5 demurring party. Wilner y. Sunset Life Ins. Co. (2000) 78 Cal.App.4th 952, 958. "The allegations in

6 the complaint must be regarded as true . . . and are to be liberally construed with a view to

7 substantial justice between the parties." Marina Tenants Assn. v. Deauville Marina Development Co.

8 (1986) 181 Cal.App.3d 122, 127. Overall, a demurrer tests the sufficiency of a pleading by raising

9 questions of law. Id. at 128.

10 Furthermore, the California Supreme Court has consistently held that a plaintiff is required
ANNIE MCADAMS, PC

11 only to set forth the essential facts of her case with reasonable precision and with particularity

12 sufficient to acquaint a defendant with the nature, source and extent of her cause of action. Ludgate

13 Ins. Co. v. Lockheed Martin Corp., (2000) 82 Cal.App.4th 592, 608; Youngman v. Nevada Irrigation

14 Dist., (1969) 70 Cal.2d 240, 245. The law is clear that when a pleader is in doubt about what

15 actually occurred or what can be established by the evidence, she may plead in the alternative and

16 make inconsistent factual or legal allegations. Adams v. Paul, (1995) 11 Cal.4th 583, 593; Crowley

17 v. Katleman, (1994) 8 Cal.4th 666, 690-691; Mendoza v. Rast Produce Co., Inc., (2006) 140

18 Cal.App.4th 1395, 1402.

19 Additionally, since this is the first substantive challenge to the complaint considered by this
20 Court, leave to amend should be granted: if a demurrer is sustained, leave to amend is “routinely

21 granted.” Weil & Brown, California Practice Guide: Civil Procedure Before Trial (Rutter 2019) ¶

22 7:129. If there is any reasonable possibility that the plaintiff can state a good cause of action, then

23 the court must grant leave to amend. Goodman v. Kennedy (1976) 18 Cal. 3d 335, 349; Okun v.

24 Sup.Ct. (Maple Properties) (1981) 29 Cal. 3d 442, 460; Bounds v. Sup.Ct. (KMA Group) (2014) 229

25 Cal.App.4th 468, 484. Otherwise, it is considered an abuse of discretion. Id. As outlined below, Jane

26 Does 1-90 sufficiently plead all material facts in their complaint; however, if this Court finds

27 otherwise, Jane Does 1-90 respectfully request leave to amend their complaint in response to

28 Salesforce’s Demurrer.
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PLAINTIFFS’ OPPOSITION TO DEFENDANT’S DEMURRER TO SECOND AMENDED COMPLAINT
 1 C. Section 230 of the CDA Does Not Bar Plaintiffs’ Claims
2 1. Section 230 Is Not Implicated Because Salesforce Is Not Treated as the
3 Publisher
4 The subsection in Section 230 that Salesforce argues provides it with immunity from Jane

5 Does’ claims is Section 230(c)(1), which provides a defense to Internet Service Providers (“ISP”)

6 when they are “treated as the publisher or speaker of any information provided by another

7 information content provider.” Section 230 does not define the terms “publisher” or “speaker,” so

8 the words must be construed according to their ordinary meaning by examining the context in which

9 they are used, the statute’s legislative history, dictionary definitions, and judicial constructions of

10 the word in other contexts. Yates v. United States, 135 S. Ct. 1074, 1082-85 (2015).
ANNIE MCADAMS, PC

11 The context in which the word “publisher” is used concerns potential liability for

12 information provided by a third party. The legislative history of the statute shows this provision was

13 intended to overrule judicial decisions that imposed defamation liability on providers by treating

14 them “as publishers or speakers of content that is not their own.” H.R. Rep. 104-458, at 194 (1996)

15 (discussing Stratton Oakmont, Inc. v. Prodigy Services Co., No. 31063/94, 1995 WL 323710 (N.Y.

16 Sup. Ct. May 24, 1995)). Black’s defines “publish” as (1) “to distribute copies (of a work) to the

17 public,” (2) “[t]o communicate (defamatory words) to someone other than the person defamed,” (3)

18 “[t]o declare (a will) to be the true expression of one’s testamentary intent,” and (4) “[t]o make

19 (evidence) available to a jury during trial.” Black’s Law Dictionary 1489 (11th ed. 2019). The

20 second definition, expressly related to defamation, is the only one that makes sense in the statutory

21 context.

22 Additionally, under the principle of noscitur a sociis, “a word is known by the company it

23 keeps—to avoid ascribing to one word a meaning so broad that it is inconsistent with its

24 accompanying words, thus giving unintended breath to the Acts of Congress.” Yates v. United

25 States, 135 S. Ct. 1074, 1085 (2015). Thus, “publisher” should be construed consistently with the

26 word that accompanies it, “speaker.” Nothing in the text or history of Section 230 indicates an intent

27 to give the word “publisher” a broader meaning than it has in defamation law. Thus, in a plain

28 language construction of Section 230, Salesforce cannot be liable for a libel claim that treats it as a
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PLAINTIFFS’ OPPOSITION TO DEFENDANT’S DEMURRER TO SECOND AMENDED COMPLAINT
 1 publisher or for a slander claim that treats it as a speaker. Jane Doe does not raise any defamation-

2 type claims or seek to hold Salesforce liable for publisher or speaker functions, so Section 230 is not

3 implicated.

4 2. The 2018 Amendment Confirms that Section 230 Does Not Apply to Human
Trafficking Claims
5

6 As human trafficking laws developed, defendants increasingly attempted to shield

7 themselves through the improper expansion Section 230 which was designed in the defamation—not

8 human trafficking—context. See, e.g., Jane Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12, 20 (1st

9 Cir. 2016). Congress addressed this problem in 2018 when it passed FOSTA, which amended
4
10 Section 230 to clarify that the statute was never intended to apply to human trafficking claims.
ANNIE MCADAMS, PC

11 In 2015, a Senate subcommittee conducted an extensive investigation of “how sex traffickers

12 increasingly use the Internet to advance their trade and evade detection.” Human Trafficking

13 Investigation, 114th Cong. 39, at 1 (2015). The subcommittee heard evidence documenting an 846%

14 increase in reports of suspected child sex trafficking, which was “directly correlated to the increased

15 use of the Internet to sell children for sex.” Id. at 2. It also heard testimony that the Section 230 was

16 being used as a shield against lawsuits and threats of prosecution. Id. at 20-21.

17 On the Senate floor, one senator remarked that “[r]egardless of how children are first

18 trafficked, one thing is almost universal—victims will be advertised on the internet. . . . [T]he

19 Internet has made this industry what it is, the second largest criminal industry in the world.”

20 161 Cong. Rec. S1591, S1621-22 (daily ed. Mar. 18, 2015) (statement of Sen. Feinstein).

21 Congress passed the amendment in April 2018 and clearly stated its intent in the enacting

22 clause: To amend the Communications Act of 1934 to clarify that section 230 of such Act does not

23 prohibit the enforcement against providers and users of interactive computer services of Federal and

24
4
The original CDA was a fairly small part of the larger Telecommunications Act of 1996, Pub. L. 104-104, 110 Stat.
25 56, most of which had nothing to do with the internet. Reno v. ACLU, 521 U.S. 844, 857 (1997). Congress intended the
CDA to protect children from exposure to internet pornography, something Congress viewed as an extremely urgent
26 threat. One of the sponsors of the amendment that became Section 230 commented: “We are all against smut and
pornography, and, as the parents of two small computer-literate children, my wife and I have seen our kids find their
27 way into these chat rooms that make their middle-aged parents cringe.” 141 Cong. Rec. H8460, H8470 (daily ed. Aug.
4, 1995) (comments of Representative Wyden).
28
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PLAINTIFFS’ OPPOSITION TO DEFENDANT’S DEMURRER TO SECOND AMENDED COMPLAINT
 1 State criminal and civil law relating to sexual exploitation of children or sex trafficking, and for

2 other purposes. Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (“FOSTA”),

3 Pub. L. No. 115-164, 132 Stat. 1253 (2018). This statement of purpose makes no distinction

4 between federal and state civil law claims.

5 Senator Portman, one of the sponsors of the amendment, made it clear that the motivation for

6 the amendment was the court opinions that interpreted the CDA as providing immunity to internet

7 service providers: the Act “was never intended to protect those who knowingly facilitate the sex

8 trafficking of vulnerable women and girls.” 163 Cong. Record S3977 (daily ed. July 13, 2017)

9 (statement of Sen. Portman). The “sense of Congress,” according to FOSTA, was that Section 230

10 “was never intended to provide legal protection to . . . websites that facilitate traffickers in
ANNIE MCADAMS, PC

11 advertising the sale of unlawful sex acts with sex trafficking victims.” Id. at sec. 2(1). Thus, the

12 point of the amendment was “to ensure that such section does not provide such protection to such

13 websites.” Id. at sec. 2(3).

14 The judicial opinions interpreting Section 230 as providing broad immunity to internet

15 service providers, upon which Salesforce relies, were the motivation for the amendment. The

16 specific motivation was Backpage.com, Salesforce’s co-conspirator.

17 3. Reliance on Pre-Amendment Cases is Misplaced Because During the Time the CDA
Cases Were Being Decided, Congress Focused on Human Trafficking
18

19 The evolution of human trafficking laws in the United States has been summarized in this

20 way:

21 For nearly the past two decades, congressional intent to combat sex trafficking has been
unyielding and comprehensive. Congress is the architect of a multi-disciplinary approach that
22 employs the use of a private right of action, a focus on victims, and state and local law
enforcement to combat sex trafficking at all levels of society.
23

24 See Mary Graw Leary, The Indecency & Injustice of Section 230 of the Communications Decency

25 Act, 41 Harv. J.L. & Pub. Policy 553, 569 (2018).

26 Any analysis of Congressional intent with respect to the CDA has to include a consideration

27 of Congress’s actions concerning legislative solutions to the problem of human trafficking. After all,

28 when the CDA was passed in 1996, “human trafficking” did not exist as a legal concept. But by the
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PLAINTIFFS’ OPPOSITION TO DEFENDANT’S DEMURRER TO SECOND AMENDED COMPLAINT
 1 time of the 2018 amendments, Congress was aware that both the federal government and most

2 States had passed legislation providing civil remedies for human trafficking claims.

3 The first emergence of the idea occurred in 2000 with the Palermo Protocol to the United

4 Nations Convention Against Transnational Organized Crime, opened for signature Dec. 12, 2000,

5 2225 U.N.T.S. 209, which expressed an international concern about human trafficking. In response

6 to the Palermo Protocol, Congress passed the Victims of Trafficking and Violence Protection Act of

7 2000, Pub. L. 106-386 (Oct. 28, 2000), Division A of which was the Trafficking Victims Protection

8 Act of 2000 (“TVPA”). The TVPA defined and criminalized human trafficking. The TVPA “created

9 structure to revisit the legislation regularly through reauthorization updating Congress’s legal

10 framework as it continued to gain more knowledge about the many forms of human trafficking.”
ANNIE MCADAMS, PC

11 Leary, Indecency & Injustice, at 567. The TVPA has been reauthorized five times between 2003 and

12 2015. Id. at 557, n.13.

13 In 2003, Congress authorized a private cause of action for sex-trafficking victims. Id. at 568.
14 As of 2014, all 50 states have passed criminal human trafficking statutes and 36 have established

15 civil actions for damages. Polaris Project, 2014 State Ratings,

16 https://www.polarisproject.org/sites/default/files/2014-State-Ratings.pdf.

17 4. Jane Doe’s Claims Are Consistent with the 2018 Amendments

18 The amendment provided that Section 230 does not preempt “Federal and State criminal and

19 civil law relating to sexual exploitation of children or sex trafficking.” FOSTA, Pub. L. No. 115-

20 164, 132 Stat. 1253 (2018). Additionally, the revised bill added a savings clause:

21 Nothing in this Act or the amendments made by this Act shall be construed to limit or
preempt any civil action or criminal prosecution under Federal law or State law (including
22 State statutory law and State common law) . . . that was not limited or preempted by section
230 of the Communications Act of 1934 (47 U.S.C. 230), as such section was in effect on
23
the day before the date of enactment of this Act.
24

25 H.R. 1865 115th Cong., sec. 5 (2d Sess. Feb. 20, 2018) (emphasis added). Congress adopted this

26 clause verbatim in Section 7 of FOSTA, which has the full force of federal law despite not being

27 codified in Section 230 itself. Pub. L. No. 115-164, sec. 7, 132 Stat. 1253, 1255; About

28 Classification of Laws to the Unites States Code, Office of the Law Revision Counsel,
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PLAINTIFFS’ OPPOSITION TO DEFENDANT’S DEMURRER TO SECOND AMENDED COMPLAINT
 1 http://uscode.house.gov/about_classification.xhtml (“[W]hether or not a provision is classified to the

2 Code . . . does not in any way affect the provision’s meaning or validity.”). FOSTA’s savings clause

3 therefore tells us that both before and after the 2018 amendments, Section 230 did not preempt all

4 state statutory or state common law claims.

5 The sole reference Salesforce makes to the 2018 amendment is in a footnote which states:

6 The 2018 Amendments to Section 230 confirm its application here. In 2018, Congress
enacted the Allow States And Victims To Fight Online Sex Trafficking Act of 2017
7 (“FOSTA”), which created a new federal civil cause of action—available both to victims and
to state Attorneys General—against operators of interactive computer services who
8
intentionally “promote or facilitate the prostitution of another person.” In addition to creating
9 this cause of action, FOSTA amended Section 230 to exempt federal civil claims for
knowing and reckless participants in sex trafficking, as well as certain state criminal
10 prosecutions for sex trafficking. (But significantly, Section 230 was not amended to create
ANNIE MCADAMS, PC

an exemption for private civil actions brought under state law.)

11

12 Dem. 23, n.4 (citation omitted). Note that Salesforce makes no attempt to actually explain the nature

13 of the 2018 amendment. Its cursory treatment of the amendment is misconceived in every respect.

14 The amendment states that Section 230 shall not “be construed to impair or limit” certain

15 civil claims under a federal statute or charges in state prosecutions based on conduct that violates

16 certain other federal criminal statutes. An amended statute must still be construed by examining the

17 language of the entire statute. Rubin v. Islamic Republic of Iran, 138 S. Ct. 816, 824-25 (2018). This

18 means that Subsection (e)(3)—which provides that consistent state laws are fully enforceable and

19 that only inconsistent state laws are preempted—must be examined in conjunction with the

20 amendments in Subsection (e)(5).

21 Congress did not need to expressly list civil claims for human trafficking under state law in

22 the amendment because such claims were already permitted so long as they are consistent with

23 Section 230. As indicated above, Congress was aware of its own actions creating civil law remedies

24 and similar actions by the states. Jane Doe alleges that by maintaining a marketplace for sex ads,

25 prostitution, and a hub for sex trafficking all aimed at growing profits, Salesforce knowingly

26 benefited from the traffickers’ continued use of the platform. SAC, at ¶¶ 151-58.

27 Therefore, Section 230 does not bar Plaintiffs’ claims even if it were applicable in this case

28 (it is not).
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PLAINTIFFS’ OPPOSITION TO DEFENDANT’S DEMURRER TO SECOND AMENDED COMPLAINT
 1 D. Plaintiffs Have Adequately Pleaded Facts Supporting Conspiracy
2 The elements of civil conspiracy are: (1) the formation and operation of the conspiracy, (2)

3 wrongful conduct in furtherance of the conspiracy, and (3) damages arising from the wrongful

4 conduct. Kidron v. Movie Acquisition Corp. (1995) 40 Cal.App.4th 1571, 1581. Accordingly, “[t]he

5 basis of a civil conspiracy is the formation of a group of two or more persons who have agreed to a

6 common plan or design to commit a tortious act.” Id., at 1582 (citing 1 Levy et al., Cal. Torts (1995)

7 Civil Conspiracy, § 9.03[2], p. 9-12); Youst v. Longo (1987) 43 Cal.3d 64, 79 (“the conspirators

8 must agree to do some act which is classified as a ‘civil wrong’”).

9 Here, the allegations are that Salesforce, knowing that Backpage was being used to promote

10 prostitution (which is in itself illegal) and human trafficking, combined forces with Backpage. SAC,
ANNIE MCADAMS, PC

11 at ¶¶ 6-11. Salesforce agreed to provide significant operational support to Backpage in exchange for

12 money. Id., at ¶¶ 136-164. The conspiring group proliferated human trafficking by knowingly

13 operating a massive human trafficking hub, and Salesforce directly assisted in scaling the growth of

14 Backpage. Id. This led to the already epidemic problem that human trafficking posed. Id. Backpage,

15 with the direct assistance of Salesforce, caused victims such as Jane Does 1-90 to be trafficked. Id.

16 Without the conspiring group of Salesforce and Backpage, Jane Does 1-90 would not have been

17 swept into human trafficking. Id., at ¶ 172. And because of the conspiracy to operate a human

18 trafficking hub, Jane Does 1-90 suffered damages. Id., at ¶¶ 198-200. Thus, taking Plaintiffs’

19 allegations as true (as the Court must at this stage), Plaintiffs have clearly pleaded a claim for civil

20 conspiracy against Salesforce.

21 E. Plaintiffs Have Adequately Pleaded a Claim Under the CTVPA

22 Consistent with other states (and the 2018 FOSTA Amendment to Section 230), California

23 enacted its own human trafficking statute – the California Trafficking Victims Protection Act

24 (CTVPA). The CTVPA is a statutory claim that provides as follows: “A victim of human

25 trafficking, as defined in Section 236.1 of the Penal Code, may bring a civil action for actual

26 damages, compensatory damages, punitive damages, injunctive relief, any combination of those, or

27 any other appropriate relief. A prevailing plaintiff may also be awarded attorney's fees and costs.”

28 Cal. Civ. Code § 52.5

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PLAINTIFFS’ OPPOSITION TO DEFENDANT’S DEMURRER TO SECOND AMENDED COMPLAINT
 1 The SAC clearly alleges that Jane Does 1-90 are all victims of human trafficking. Thus, the

2 only issue to address is whether or not Plaintiffs have pleaded predicate conduct to satisfy the

3 definition of human trafficking under Section 236.1 of the Penal Code. They have.

4 Section 236.1(b)5 states in pertinent part, “A person who deprives or violates the personal

5 liberty of another with the intent to effect or maintain a violation [of certain sections of the

6 California Penal Code] is guilty of human trafficking . . . .” (emphasis added). Among other Penal

7 Code sections listed, one is particularly pertinent to this case. Penal Code section 266i establishes a

8 criminal offense over any person who engages in the following conduct:

9 Receives or gives, or agrees to receive or give, any money or thing of value for procuring, or
attempting to procure, another person for the purpose of prostitution, or to come into this
10 state or leave this state for the purpose of prostitution.
ANNIE MCADAMS, PC

11 Plaintiffs’ SAC clearly states that Salesforce agreed to and did receive money for procuring
12 and attempting to procure Jane Does for prostitution. SAC, at ¶ 149-158. And Section 236.1

13 provides for an offense if the person acts “with the intent to effect or maintain a violation of

14 Section…266i.” Cal. Pen. Code § 236.1(b)(emphasis added). Here, Salesforce conspired with

15 Backpage to maintain a hub of human trafficking. And Salesforce received money for doing so,

16 despite public proclamations that it was fighting the known evils of human trafficking. As a result of

17 Salesforce’s acts, Plaintiffs were deprived of their personal liberty and suffered resulting damages

18 from their trafficking.

19 Plaintiffs have pleaded a claim under the CTVPA. But if there were any doubt, the statute
20 explicitly states that totality of circumstances must be considered:

21 The total circumstances, including the age of the victim, the relationship between the victim
and the trafficker or agents of the trafficker, and any handicap or disability of the victim,
22
shall be factors to consider in determining the presence of “deprivation or violation of the
23 personal liberty of another,” “duress,” and “coercion” as described in this section.

24 236. 1, at Section (i).

25
5
Section 236.1(c) extends even broader protection for minors, of which some Plaintiffs are. “[A] plain reading of the
26
statutory language indicates that a person violates section 236.1(c) by attempting to cause, induce, or persuade another
person to engage in a commercial sex act, with the intent to commit one of the specified sex offenses listed in the statute.
27 The other person—who the offender attempts to cause, induce, or persuade—must be a minor, but the offender need not
specifically intend to have targeted a minor as his victim.” People v. Shields (2018) 23 Cal.App.5th 1242, 1251 [233
28 Cal.Rptr.3d 701, 708](emphasis added).
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PLAINTIFFS’ OPPOSITION TO DEFENDANT’S DEMURRER TO SECOND AMENDED COMPLAINT
 1 Thus, under the totality of the circumstances pleaded in the SAC and accepting the

2 allegations as true (as the Court must at this stage), Jane Does have adequately pleaded a claim

3 under the CTVPA against Salesforce.

4 Salesforce also incorrectly claims that CTVPA claims could never apply to Plaintiffs that are

5 not California residents. This contention is not supported by the law. Application of California law

6 to claims of nonresident plaintiffs is allowed in certain circumstances, such as when a Defendant

7 like Salesforce has contacts that constitute a sufficient aggregation of contacts sufficient to permit

8 California law to apply. Clothesrigger, Inc. v. GTE Corp. (1987) 191 Cal.App.3d 605, 613.

9 “[G]enerally speaking the forum will apply its own rule of decision unless a party litigant timely

10 invokes the law of a foreign state…” Id. (citing Hurtado v. Superior Court (1974) 11 Cal. 3d. 574,
ANNIE MCADAMS, PC

11 581). In fact, California's more favorable laws may properly apply to benefit nonresident plaintiffs

12 when their home states have no identifiable interest in denying such persons full recovery. Id. Thus,

13 Salesforce’s argument that the CTVPA could not apply to claims brought by non-residents is not

14 appropriate at this stage of the litigation.

15 F. Plaintiffs Have Adequately Pleaded a Claim for Negligence and Gross Negligence
16 “To recover on a negligence theory, a plaintiff must prove duty, breach, causation and

17 damages.” Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 480. Salesforce only

18 addresses duty and causation, so Plaintiffs will address those elements.

19 1. Duty
20 At a minimum, Salesforce had a statutory duty under the CTVPA, as discussed above. When

21 duty is conferred by statute, the statute claimed to establish the duty must at the very least be

22 identified. Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802. Here, Plaintiffs

23 have identified the statute giving rise to the statutory duty, satisfying the pleading requirement.

24 Even absent a statutory duty, the general rule in California is that “[e]veryone is responsible

25 ... for an injury occasioned to another by his or her want of ordinary care or skill in the management

26 of his or her property or person....” Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 771 (citing

27 Civ.Code, § 1714, subd. (a)). In other words, “each person has a duty to use ordinary care and ‘is

28 liable for injuries caused by his failure to exercise reasonable care in the circumstances....' ” Id.
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PLAINTIFFS’ OPPOSITION TO DEFENDANT’S DEMURRER TO SECOND AMENDED COMPLAINT
 1 (citing Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 472, 63 Cal.Rptr.2d 291, 936 P.2d

2 70). As to foreseeability giving rise to duty, the California Supreme Court has explained that the

3 court's task in determining duty “is not to decide whether a particular plaintiff's injury was

4 reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more

5 generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind

6 of harm experienced that liability may appropriately be imposed....” Id., at 772.

7 Salesforce knew of Backpage’s practice of facilitating human trafficking. Salesforce,

8 nevertheless, conspired with Backpage by providing it with operational support in exchange for a

9 financial benefit. SAC, at ¶¶ 149-50. Salesforce had a duty to use ordinary care to avoid foreseeable

10 risk. Id., at ¶¶ 184-86. Salesforce could and should have foreseen that trafficked victims would be
ANNIE MCADAMS, PC

11 harmed. Id., at ¶ 186. Thus, harm to Jane Does 1-90 was reasonably foreseeable to Salesforce, and

12 foreseeability of the specific intervening acts is not required. Id., at ¶¶ 184-86. Therefore, Salesforce

13 had a duty to use ordinary care to avoid risk of harm to Jane Does 1-90. Id., at ¶ 185. Salesforce

14 breached that duty when it caused Jane Does 1-90 to be swept into human trafficking, causing

15 damage to Plaintiffs. Id., at ¶¶ 186-190.

16 2. Causation
17 Salesforce argues that some intervening actor caused Jane Does damages, which somehow
18 insulates Salesforce due to a lack of causation. But this argument misses the mark. Salesforce caused

19 Jane Does 1-90 to be swept into human trafficking. And Salesforce knowingly conspired to allow

20 Jane Does 1-90 to be trafficked. Salesforce could and should have foreseen that trafficked victims

21 would be harmed. Without Salesforce, Plaintiffs would not have been harmed. Thus, Plaintiffs have

22 adequately pleaded causation.

23 An actor may be liable if the actor's negligence is a substantial factor in causing an injury,

24 and the actor is not relieved of liability because of the intervening act of a third person if such act

25 was reasonably foreseeable at the time of the original negligent conduct. Anaya v. Superior Court

26 (2000) 78 Cal.App.4th 971, 973–974. The foreseeability required is of the risk of harm, not of the

27 particular intervening act.” Torres v. Xomox Corp. (1996) 49 Cal.App.4th 1, 18. To determine that “

28 'a negligent actor [is] liable for another's harm, it is necessary not only that the actor's conduct be
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PLAINTIFFS’ OPPOSITION TO DEFENDANT’S DEMURRER TO SECOND AMENDED COMPLAINT
 1 negligent toward the other, but also that the negligence of the actor be a legal cause of the other's

2 harm.' 'Legal cause' exists if the actor's conduct is a 'substantial factor' in bringing about the harm

3 and there is no rule of law relieving the actor from liability.” Nola M. v. University of Southern

4 California (1993) 16 Cal.App.4th 421, 427.

5 “Conduct can be considered a substantial factor in bringing about harm if it 'has created a

6 force or series of forces which are in continuous and active operation up to the time of the harm'

7 (Rest.2d Torts, § 433, subd. (b), or stated another way, 'the effects of the actor's negligent conduct

8 actively and continuously operate to bring about harm to another' (Rest.2d Torts, §§ 439, 433, com.

9 e.).” Torres v. Xomox Corp. (1996) 49 Cal.App.4th 1, 17–18 (citing Osborn v. Irwin Memorial

10 Blood Bank (1992) 5 Cal.App.4th 234, 253).

ANNIE MCADAMS, PC

11 Salesforce caused Jane Does 1-90 to be swept into human trafficking. And Salesforce
12 knowingly conspired to allow Jane Does 1-90 to be trafficked. Salesforce, at a minimum “created a

13 series of forces” which gave rise to the harm suffered by Plaintiffs. Thus, Plaintiffs have adequately

14 pleaded causation.

15 Having established both duty and causation, Plaintiffs’ have adequately pleaded a negligence
16 claim.6

17 IV. CONCLUSION
18 Salesforce knowingly participated in a conspiracy with Backpage, which caused victims,
19 including Jane Does 1-90, to be trafficked, raped, and abused. Plaintiffs’ claims are not barred by

20 Section 230; rather, this is exactly the type of conduct that Congress addressed in the 2018 FOSTA

21 Amendment. Furthermore, it is also the type of conduct for which California provides a civil remedy

22 under the CVTPA. Plaintiffs have adequately pleaded claims under the CVTPA, as well as claims

23 for negligence and civil conspiracy. For the foregoing reasons, Plaintiffs respectfully request that the

24 Court overrule Defendant’s Demurrer. Should the court be inclined to sustain the Demurrer,

25
6
Plaintiffs recognize that California does not provide for a distinct claim for gross negligence. Jimenez v. 24 Hour
26
Fitness USA, Inc. (2015) 237 Cal.App.4th 546, 552 n.3. Though Plaintiffs pleaded it as a separate cause of action, it is
derivative of their negligence claim, which is proper for the reasons above. However, should the Court be inclined to
27 sustain Salesforce’s Demurrer as to the gross negligence cause of action, Plaintiffs request leave to amend to
incorporate the allegations specifically pleaded under the gross negligence cause of action into the allegations under
28 the negligence cause of action.
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PLAINTIFFS’ OPPOSITION TO DEFENDANT’S DEMURRER TO SECOND AMENDED COMPLAINT
 1 Plaintiffs respectfully request leave to amend.

2 DATED: September 6, 2019 ANNIE MCADAMS, PC

4
By:
5 Annie McAdams [to be admitted Pro Hac Vice]
Matthew S. Parmet
6
KIESEL LAW LLP
7 Paul R. Kiesel

8 SICO HOELSCHER HARRIS LLP

David E. Harris [to be admitted Pro Hac Vice]
9 Louie J. Cook [to be admitted Pro Hac Vice]

10 THE GALLAGHER LAW FIRM

ANNIE MCADAMS, PC

Michael T. Gallagher [to be admitted Pro Hac Vice]

11 Pamela McLemore [to be admitted Pro Hac Vice]

12 Attorneys for Plaintiffs

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PLAINTIFFS’ OPPOSITION TO DEFENDANT’S DEMURRER TO SECOND AMENDED COMPLAINT
 1 PROOF OF SERVICE
2 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

3 At the time of service, I was over 18 years of age and not a party to this action. I am
employed in the County of Los Angeles, State of California. My business address is 8648 Wilshire
4 Boulevard, Beverly Hills, CA 90211-2910.

5 On September 6, 2019, I served true copies of the following document(s) described as

PLAINTIFFS’ OPPOSITION TO DEFENDANT’S DEMURRER TO SECOND AMENDED
6 COMPLAINT on the interested parties in this action as follows:

7 Kristin Linsley Attorneys for Defendant

Matthew S. Kahn SALESFORCE.COM, INC.
8 klinsley@gibsondunn.com
mkahn@gibsondunn.com
9
GIBSON DUNN & CRUTCHER LLP
10 555 Mission Street
ANNIE MCADAMS, PC

San Francisco, CA 94105

11 Tel.: (415) 393-8395
Fax: (415) 374-8471
12
BY ELECTRONIC SERVICE: I caused each document to be sent by electronic
13 transmission through One Legal, LLC, through the user interface at www.onelegal.com to all e-
mail addresses on the list maintained by One Legal.
14
BY OVERNIGHT DELIVERY: I enclosed said document(s) in an envelope or package
15
provided by the overnight service carrier and addressed to the persons at the addresses listed in the
16 Service List. I placed the envelope or package for collection and overnight delivery at an office or
a regularly utilized drop box of the overnight service carrier or delivered such document(s) to a
17 courier or driver authorized by the overnight service carrier to receive documents.
I declare under penalty of perjury under the laws of the State of California that the
18 foregoing is true and correct.

19 Executed on September 6, 2019, at Beverly Hills, California.

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Maria Basey
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PROOF OF SERVICE