Filed 11/5/26
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
SOCIAL MEDIA CASES B340661
SAN DIEGO UNIFIED JCCP No. 5255
SCHOOL DISTRICT,
Plaintiff and Appellant,
v.
META PLATFORMS, INC. et
al.,
Defendants and
Respondents.
[And three other related
cases.]
APPEALS from a judgment of the Superior Court of Los
Angeles County, Carolyn Kuhl, Judge. Affirmed.
The School Board of Brevard County, Florida v. Meta
Platforms, Inc. (No. B340659), Vancouver School District No. 37
v. Meta Platforms, Inc. (No. B340662), and West Warwick Public
Schools, Kent County, State of Rhode Island v. Meta Platforms,
Inc. (No. B340667)
Panish|Shea|Ravipudi, Brian J. Panish, Rahul Ravipudi,
Jesse Creed; Esner, Chang, Boyer & Murphy, Shea S. Murphy,
Kiran R. Iyer; Wagstaff & Cartmell, Austin Brane; Morgan &
Morgan and Josh Autry for Plaintiff and Appellant San Diego
Unified School District.
Panish|Shea|Ravipudi, Brian J. Panish, Rahul Ravipudi,
Jesse Creed; Esner, Chang, Boyer & Murphy, Shea S. Murphy,
Kiran R. Iyer; Wagstaff & Cartmell, Austin Brane, Adam S.
Davis; Morgan & Morgan and Josh Autry for Plaintiff and
Appellant School Board of Brevard County, Florida.
Panish|Shea|Ravipudi, Brian J. Panish, Rahul Ravipudi,
Jesse Creed; Esner, Chang, Boyer & Murphy, Shea S. Murphy,
Kiran R. Iyer; Keller Rohrback, Dean N. Kawamoto, Felicia J.
Craick; Morgan & Morgan and Josh Autry for Plaintiff and
Appellant Vancouver School District No. 37.
Panish|Shea|Ravipudi, Brian J. Panish, Rahul Ravipudi,
Jesse Creed; Esner, Chang, Boyer & Murphy, Shea S. Murphy,
Kiran R. Iyer; Morgan & Morgan and Josh Autry for Plaintiff and
Appellant West Warwick Public Schools, Kent County, State of
Rhode Island.
Munger, Tolles & Olson, Jonathan H. Blavin and
Victoria A. Degtyareva for Defendant and Respondent Snap Inc.
King & Spalding, Paul J. Watford, Bailey J. Langner,
David P. Mattern and Geoffrey M. Drake for Defendants and
Respondents TikTok Inc. and ByteDance Inc.
Covington & Burling, Mark W. Mosier, Ashley M.
Simonsen and Christian J. Pistilli for Defendants and
Respondents Meta Platforms, Inc.; Facebook Holdings, LLC;
Facebook Operations, LLC; Meta Payments, Inc.; Facebook
Technologies, LLC; Instagram, LLC; and Siculus LLC.
2
Williams & Connolly, Ashley W. Hardin, George A. Borden
and Neelum J. Wadhwani for Defendants and Respondents
Google LLC and YouTube, LLC.
____________________
In recent years, various plaintiffs have brought numerous
legal claims against social media companies. In this opinion, we
address only two causes of action—negligence and public
nuisance—in the context of the laws of California, Florida,
Washington, and Rhode Island, brought by school districts. The
holdings we reach here must be understood within that context.
In this coordinated proceeding, four school districts1
(Plaintiffs) sued a group of social media companies2 (Defendants).
Plaintiffs generally claimed Defendants created a “mental health
crisis” among their students that harmed Plaintiffs by disrupting
their educational mission, requiring them to spend more money
and staff time to address student mental health and discipline,
and causing students to vandalize their property. Plaintiffs
appeal the trial court’s order sustaining Defendants’ demurrer to
all four complaints on the ground they failed to allege any
cognizable causes of action.
1 San Diego Unified School District (San Diego), School
Board of Brevard County, Florida (Brevard), Vancouver School
District No. 37 (Vancouver), and West Warwick Public Schools,
Kent County, State of Rhode Island (West Warwick).
2 Snap Inc. (Snap); TikTok Inc. and ByteDance Inc.
(collectively, TikTok); Meta Platforms, Inc., Facebook Holdings,
LLC, Facebook Operations, LLC, Meta Payments, Inc., Facebook
Technologies, LLC, Instagram, LLC, and Siculus LLC
(collectively, Meta); and Google LLC and YouTube, LLC
(collectively, YouTube).
3
We acknowledge the serious allegations of mental health
harms experienced by many students and the impact of those
harms on Plaintiffs’ schools and student bodies. We affirm the
trial court’s ruling, however, because it follows existing
precedents which we too are bound to follow, and which establish
that these plaintiffs cannot proceed under the legal theories and
factual allegations they have pled.
FACTUAL BACKGROUND
We draw this factual summary from the operative
complaints. (See Howard Jarvis Taxpayers Assn. v. City of La
Habra (2001) 25 Cal.4th 809, 814; Wozniak v. YouTube, LLC
(2024) 100 Cal.App.5th 893, 907 (Wozniak).)
According to Plaintiffs, “[s]chool districts across the nation
are battling an unprecedented mental health crisis among their
students and serious disruption to their educational public
mission, fueled by Defendants’ creation and promotion of
addictive and dangerous social media platforms.” Because
“[s]tudents are now addicted to [those] platforms in droves,”
districts have experienced a “substantial interference with [their]
operations” and bear “a large burden” to provide mental health
services to their students. Plaintiffs seek to hold Defendants
liable, not for the harms allegedly imposed upon students, but for
those imposed upon districts.
Plaintiffs allege Defendants’ platforms are addictive and
were “designed, developed, produced, operated, promoted,
distributed, and marketed . . . to maximize the number of
children, including [each] Plaintiff’s students, who download and
use them compulsively.”
Particular “design features” embedded in Defendants’
platforms are allegedly meant to “maximiz[e] youth engagement”
4
and profit Defendants via advertising revenue. For example, the
complaints describe “an algorithmically-generated, endless feed
to keep users scrolling in an induced ‘flow state’; ‘intermittent
variable rewards’ that manipulate dopamine delivery to intensify
use; ‘trophies’ to reward extreme usage; metrics and graphics to
exploit social comparison; incessant notifications that encourage
repetitive account checking by manufacturing insecurity;
inadequate, essentially illusory age verification protocols; and
deficient tools for parents that create the illusion of control.”
Because of their young ages and developmental stages,
“children and adolescents are uniquely vulnerable and easy
targets” for these features and “tend to engage in addictive and
compulsive use” of Defendants’ platforms. Defendants designed
their platforms in this manner, “even though they knew or should
have known [those] choices would have a detrimental effect on
school operations and [students], including those in Plaintiff[s’]
district[s], leading to serious problems in schools.”
Plaintiffs allege large numbers of children and teens in the
United States use Defendants’ platforms, many on a daily or
more frequent basis, “including during the school day.” One
survey of teenage girls who use social media indicated between
33 percent and 45 percent “felt addicted” to the platforms, and
some Defendants were aware certain users felt the platforms
were addictive and that compulsive use interfered with school
and family responsibilities.
Nevertheless, “Defendants wanted children using their
[platforms] during the school day.” Internal documents showed
some Defendants encouraged “use of their addictive platforms
[in] entire school communities” including “during class.”
5
Plaintiffs further allege various research studies show the
problematic “features engineered into Defendants’ platforms—
particularly when used multiple hours a day—can have a
‘detrimental effect on the psychological health of [their] users,’
including compulsive use, addiction, body dissatisfaction, anxiety,
depression, and self-harming behaviors such as eating disorders.”
(Original brackets.) Each Defendant was “aware of research
connecting use of their [platforms] with harm to [their] users’
wellbeing.”
In that regard, some research has shown “addictive and
compulsive use of Defendants’ platforms leads to negative mental
and physical outcomes for kids,” and children and teens “addicted
to [Meta’s platform] are more likely to engage in self-injurious
behavior, such as cutting and suicide.” But social media addiction
is not uniform across users: instead, it “is more prevalent among
younger age groups.” Likewise, use of the platforms appears to
have a significant effect on some female teens, particularly as it
relates to negative body image.
The overall mental health of American teens has decreased
over the past 15 to 20 years, with more reporting “persistent
sadness or hopelessness,” increased suicide rates, and increased
emergency room visits for anxiety, mood, and attention disorders.
Plaintiffs allege “Defendants’ platforms have triggered
depression, anxiety, eating disorders, self-harm, and suicidality
among thousands of children, including students in Plaintiff[s’]
schools, to which Plaintiff[s] must respond.”
As a result of Defendants’ actions, “[s]ocial media addiction
is widespread within Plaintiff[s’] schools and has resulted in a
myriad of harms to Plaintiff[s].” Plaintiffs allege they were
harmed by Defendants’ conduct in three primary ways.
6
First, “[t]he mental health crisis caused and/or significantly
contributed to by Defendants has caused an ongoing behavioral
disruption in Plaintiff[s’] school[s], and Plaintiff[s] [have] had to
take steps to mitigate [that] disruption” by, among other things:
“hiring additional personnel”; “developing additional resources”;
and “increasing training for teachers and staff to identify” and
“address mental, emotional, and social health issues” among
students.
Second, “Plaintiff[s’] educational mission [is] hindered”
because staff must “spend[] more time addressing issues related
to social media [and] less time teaching.” For example, some
“teachers must interrupt or stop instruction frequently” to
manage student cell phone use. “[D]isciplinary incidents tied to
cell phones and social media” have “required [staff] to divert time
from education . . . toward investigating and resolving [those]
incidents.” This has led Plaintiffs to “increas[e] disciplinary
services” and to “consider strategies like purchasing additional
learning materials to aid students who are behind on their
progress . . . and purchasing faraday bags . . . to disable phones.”
Third, Defendants’ conduct “adversely impact[ed]
Plaintiff[s’] use and enjoyment of [their] property,” in part by
“interfer[ing] with the functions and operations of Plaintiff[s’]
schools.” Some schools “have seen a rise in vandalism of school
property coinciding with the youth mental health crisis,” and
some school districts have had to “address[] property damaged as
a result of students acting out because of mental, social, and
emotional problems Defendants’ conduct caused,” or because of
“students’ . . . compulsive participation in social media challenges
that direct destruction . . . of school property.” With regard to the
latter, “TikTok’s algorithms . . . promote challenges that
7
specifically target school districts” and encourage viewers to
vandalize school property. That caused some schools to sustain
damage to restroom fixtures.
PROCEDURAL HISTORY
The operative complaints in all four cases were filed in
January 2024. San Diego’s operative complaint alleged causes of
action for public nuisance, negligence and gross negligence under
California law. (Case No. B340661.)
Vancouver’s operative complaint alleged one cause of action
for public nuisance under Washington law. (Case No. B340662.)
West Warwick’s operative complaint alleged causes of
action for negligence, gross negligence, and public nuisance under
Rhode Island law. (Case No. B340667.)
Brevard’s operative complaint alleged causes of action for
negligence, gross negligence, and public nuisance under Florida
law. (Case No. B340659.)
These four complaints were “identified for the initial round
of demurrer briefing” in this Judicial Council Coordinated
Proceeding. Defendants duly filed an omnibus demurrer to all
four complaints in February 2024. Among other things, they
argued: Plaintiffs’ alleged injuries derived from those of their
students and thus were not cognizable in nuisance or negligence;
the nuisance claims were overly broad, failed to allege
interference with any public right or the rights of an entire
community, and Plaintiffs lacked standing to bring them; and
Plaintiffs’ negligence claims failed because they did not allege a
cognizable legal duty and were barred by the economic loss
doctrine.
The trial court granted the demurrer in its entirety in June
2024. Because Plaintiffs had “not expressly sought leave to
8
amend, nor . . . suggested a factual basis for further amendment,”
the court sustained the demurrer without leave to amend. 3
Judgment was entered on July 16, 2024. Plaintiffs timely
appealed. (See Cal. Rules of Court, rule 8.104(a).) We
consolidated the cases for purposes of oral argument and
decision.
DISCUSSION
I. Applicable Law and Standard of Review
A. Standard of Review
We review de novo the trial court’s decision a complaint
fails to “ ‘allege[] facts sufficient to state a cause of action.’ ”
(Wozniak, supra, 100 Cal.App.5th at p. 906.) We “give the
complaint a reasonable interpretation,” assuming the truth of
“ ‘all material facts properly pleaded, but not contentions,
deductions or conclusion of fact or law.’ ” (Blank v. Kirwan (1985)
39 Cal.3d 311, 318.) The plaintiff “ ‘ “must show the complaint
alleges facts sufficient to establish every element of each cause of
action.” ’ ” (Wozniak, at p. 907.) We may affirm the trial court’s
order “on any ground stated in the demurrer.” (Association for
Los Angeles Deputy Sheriffs v. County of Los Angeles (2019)
42 Cal.App.5th 918, 934.)
B. Negligence Causes of Action
In this part, we first address a few principles common to
the three negligence causes of action. Then, in parts II. through
IV., we analyze each negligence cause of action under the law of
the relevant state and explain why the trial court correctly
determined each plaintiff failed to state a claim.
3 Vancouver is the only plaintiff that challenges the denial of
leave to amend, with regard to the Washington public nuisance
cause of action.
9
1. A Duty of Care Is an Element of
Negligence
In each state at issue, a required element of negligence is
the existence of a duty of care by the defendant to the plaintiff. In
considering the existence of a duty, “ ‘[t]he foreseeability of a
particular kind of harm plays a very significant role.’ ”4 (Banks v.
Bowen’s Landing Corp. (R.I. 1987) 522 A.2d 1222, 1224, 1226; see
also Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1142; Gas
Leak Cases, at pp. 398, 400; McCain v. Florida Power Corp. (Fla.
1992) 593 So.2d 500, 502–505 (McCain).) Nevertheless, a court is
not tasked with “ ‘decid[ing] whether a particular plaintiff’s
injury was reasonably foreseeable in light of a particular
defendant’s conduct, but rather . . . whether the category of
negligent conduct at issue is sufficiently likely to result in the
kind of harm experienced that liability may appropriately be
imposed.’ ” (Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764,
772; Banks, at pp. 1226–1227; see also Williams v. Davis (Fla.
2007) 974 So.2d 1052, 1056, fn. 2 (Williams) [the defendant’s
activity must have “created a general zone of foreseeable danger
of a certain type of harm to others”].)
Here, Plaintiffs allege they suffered three general kinds of
harm: (1) “incur[ring] significant financial costs” to address the
youth mental health crisis allegedly created by Defendants’
platforms; (2) “frustrat[ion] [of their] pedagogical mission” in
diverting staff time and resources from education to counter the
disruptive effects of the crisis; and (3) property damage inflicted
4 Other factors may also bear upon duty (see Flynn v.
Nickerson Community Center (R.I. 2018) 177 A.3d 468, 479
(Flynn); Southern California Gas Leak Cases (2019) 7 Cal.5th
391, 398–400 (Gas Leak Cases)), but we focus on foreseeability.
10
by students. In part V., we conclude Plaintiffs’ allegations their
missions were frustrated do not state a cognizable negligence
claim, and in part VI., we conclude Defendants have immunity
from liability arising from Plaintiffs’ alleged property damage.
That leaves Plaintiffs with only alleged financial harms—
which we conclude in parts II. through IV., post, are not
recoverable in negligence in these circumstances under
California, Rhode Island, or Florida law. Thus, Plaintiffs have not
adequately pled any of the Defendants owed them a duty of care
under the laws of their respective states.5 The trial court properly
sustained Defendants’ demurrer to the negligence causes of
action.6
2. In General, Purely Economic Harms Are
Not Recoverable
The crux of the negligence causes of action is the
applicability of the so-called “economic loss rule.” Our Supreme
Court has described the rule as “deceptively easy to state: In
5 Our conclusion likewise forecloses Plaintiffs’ argument
Defendants owed a duty to warn them of harms posed by
Defendants’ platforms. Defendants have no duty to warn of a
purported peril they have no duty to prevent. (See Jane Doe No. 1
v. Uber Technologies, Inc. (2022) 79 Cal.App.5th 410, 424;
Saunders v. Baseball Factory, Inc. (Fla.Ct.App. 2023) 361 So.3d
365, 368, 370–371 (Saunders); Thomas v. Amway Corp. (R.I.
1985) 488 A.2d 716, 718, 722.)
6 San Diego and West Warwick do not appeal the dismissal
of their gross negligence causes of action. Brevard does not argue
its gross negligence claim should survive if its negligence cause of
action fails. We therefore affirm the judgment on Brevard’s gross
negligence cause of action for the reasons discussed in part IV.,
post.
11
general, there is no recovery in tort for negligently inflicted
‘purely economic losses,’ meaning financial harm unaccompanied
by physical or property damage.” (Sheen v. Wells Fargo Bank,
N.A. (2022) 12 Cal.5th 905, 922 (Sheen).)
While that may seem straightforward, the reasoning
underlying the application of the rule can vary, and different
jurisdictions recognize different exceptions to it. For example,
some courts use the term “economic loss rule” to describe a
principle “bar[ring] claims in negligence for pure economic losses”
among parties in contractual privity. (Sheen, supra, 12 Cal.5th at
pp. 922–923; see also Franklin Grove Corp. v. Drexel (R.I. 2007)
936 A.2d 1272, 1275 (Franklin Grove); Curd v. Mosaic Fertilizer,
LLC (Fla. 2010) 39 So.3d 1216, 1223 (Curd), receded from on
other grounds by Lieupo v. Simon’s Trucking, Inc. (Fla. 2019) 286
So.3d 143, 144–145.) In California, we refer to this facet of the
“rule . . . as the ‘contractual economic loss rule.’ ” (Sheen, at
p. 923.) That doctrine is motivated by the principle that in
contractual disputes, the scope of duty is better defined by the
provisions in the parties’ agreement. (Ibid.; Franklin Grove, at
p. 1275.) That facet is not relevant to this case.
Instead, we are concerned here with a facet of the economic
loss rule arising from courts’ efforts to impose “[m]eaningful
limits on [the scope of] tort liability.” (Gas Leak Cases, supra,
7 Cal.5th at p. 414; see Sheen, supra, 12 Cal.5th at p. 922;
Monroe v. Sarasota County School Bd. (Fla.Dist.Ct.App. 1999)
746 S.2d 530, 534–535 (Monroe); Builders Specialty Co. v. Goulet
(R.I. 1994) 639 A.2d 59, 60 (per curiam) (Builders Specialty).) Our
Supreme Court described the need for those limits more than
30 years ago with the following illustration: “[A]ssume[] a
defendant negligently causes an automobile accident that blocks
12
a major traffic artery such as a bridge or tunnel. Although
defendant would be liable for personal injuries and property
damage suffered in such an accident, it is doubtful any court
would allow recovery by the myriad of third parties who might
claim economic losses because the bridge or tunnel was
impassible.” (Bily v. Arthur Young and Co. (1992) 3 Cal.4th 370,
400, fn. 11.)
The economic losses suffered by those third parties may
theoretically be foreseeable, but more is required to impose a
duty of care in that context. (Gas Leak Cases, supra, 7 Cal.5th at
p. 401.) While “foreseeability ‘ “may set tolerable limits for most
types of physical harm, it provides virtually no limit on liability
for nonphysical harm” ’ because “on ‘ “clear judicial days,” ’ courts
‘ “can foresee forever.” ’ ” (Ibid.) Thus, even though “denying
recovery for purely economic losses” may appear somewhat
arbitrary, this “admittedly imperfect legal regime . . . governs in
most jurisdictions.” (Id. at p. 412.)
Because that legal regime applies in California, Rhode
Island, and Florida, Plaintiffs’ negligence causes of action were
properly dismissed.
C. Public Nuisance Causes of Action
Nuisance suits are generally either public or private.
(People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1103
(Gallo); see also Prior v. White (Fla. 1938) 180 So. 347, 355
(Prior); State v. Lead Industries, Ass’n, Inc. (R.I. 2008) 951 A.2d
428, 443 (Lead Industries); see also Animal Legal Defense v.
Olympic Game Farm (Wash. 2023) 533 P.3d 1170, 1172 (Animal
Legal).) “[A] private nuisance is a civil wrong based on
disturbance of rights in land[,] while a public nuisance is [based]
upon an interference with the rights of the community at large.”
13
(Venuto v. Owens-Corning Fiberglas Corp. (1971) 22 Cal.App.3d
116, 124; see also Gallo, at p. 1103.)
“Nuisance has been described as an ‘impenetrable jungle’ ”
that “ ‘mean[s] all things to all people’ ” and “ ‘is incapable of any
exact or comprehensive definition.’ ” (City of San Diego v. U.S.
Gypsum Co. (1994) 30 Cal.App.4th 575, 585 (U.S. Gypsum).)
Thus, while nuisance is often defined broadly, many courts have
limited its scope in practice. (See id. at p. 586; Animal Legal,
supra, 533 P.3d at pp. 1172, 1175.) For example, the Washington
Supreme Court expressly limits nuisance claims “to property
infringement [and] threats to health and safety.” (Animal Legal,
at p. 1175.) Some of our fellow Courts of Appeal have prohibited
bringing products liability claims in the guise of public nuisance
actions. (U.S. Gypsum, at p. 586; City of Modesto Redevelopment
Agency v. Superior Court (2004) 119 Cal.App.4th 28, 39, 42–43;
but see People v. ConAgra Grocery Products Co. (2017) 17
Cal.App.5th 51, 91; County of Santa Clara v. Atlantic Richfield
Co. (2006) 137 Cal.App.4th 292, 309 (Atlantic Richfield).)
Such limits are often imposed because of a concern that
“nuisance ‘would [otherwise] become a monster that would
devour in one gulp the entire law of tort.’ ” (U.S. Gypsum, supra,
30 Cal.App.4th at p. 586.) In the products liability context, “ ‘[a]ll
a creative mind would need to do is construct a scenario
describing a known or perceived harm . . . that can somehow be
said to relate back to the way a company . . . makes, markets
and/or sells its non-defective, lawful product or service, and a
public nuisance claim would be conceived and born.’ ” (Lead
Industries, supra, 951 A.2d at p. 457.)
The trial court concluded Plaintiffs failed to adequately
plead public nuisance because the harms alleged to have befallen
14
individual student users of Defendants’ platforms did not amount
to a public nuisance, even when “considered collectively.” While
our analysis may differ from the trial court’s in some particulars,
we ultimately agree Plaintiffs’ efforts to state a cause of action for
public nuisance fail under the laws of California, Washington,
and Florida.7 (See pts. VII.–IX., post.)
II. San Diego Did Not State a California Negligence
Cause of Action
A. The Economic Loss Rule Bars San Diego’s
Negligence Cause of Action
Our Supreme Court has recognized that while a defendant
may have a general duty to guard against causing “actionable
physical, emotional or reputational injury to persons or physical
injury to property,” he typically “ha[s] no tort duty to guard
against purely economic losses.” (Gas Leak Cases, supra,
7 Cal.5th at p. 398; Sheen, supra, 12 Cal.5th at p. 920.) In
general, “there is no recovery in tort for negligently inflicted
‘purely economic losses,’ meaning financial harm unaccompanied
by physical or property damage.” (Sheen, at p. 922; see also Gas
Leak Cases, at p. 398 [“We use that term as a shorthand for
‘pecuniary or commercial loss that does not arise from actionable
physical, emotional or reputational injury to persons or physical
injury to property.’ ”].) Here, because San Diego failed to allege
cognizable physical or property damage, its negligence cause of
action fails.
7 At oral argument, West Warwick withdrew its Rhode
Island public nuisance cause of action.
15
B. No Exception to the Economic Loss Rule
Applies Here
San Diego argues the economic loss rule should not apply
“because the ‘considerations’ justifying [it]—preventing
indeterminate liability, disproportionate liability, and over-
deterrence—are ‘weak’ or ‘absent’ ” here. We disagree.
First, assuming without deciding that Gas Leak Cases’
references to the Restatement Third of Torts’ approach to
negligence claims apply equally to California law (see Gas Leak
Cases, supra, 7 Cal.5th at pp. 407–408), we find those
considerations present here. San Diego argues making an
exception to the economic loss rule for its claim would “not
threaten ‘indeterminate’ liability [citation] because its allegations
could only be made by a limited set of potential plaintiffs.” But
just as in Gas Leak Cases, we must consider not only the “limited
class” currently before us, but rather “the full universe of
potential claimants whose pocketbooks were adversely (and
foreseeably) affected by” Defendants’ platforms. (Id. at p. 410.) As
the trial court recognized, the universe of entities who may have
suffered (or will suffer) some sort of financial loss because of the
platforms is virtually unlimited, and could include “private and
parochial schools,” “[c]olleges,” “[e]mployers,” and “public health
services” that incurred increased expenses to treat alleged user
health problems. As with the proposed class of plaintiffs in Gas
Leak Cases, there is no viable geographic (spatial) or temporal
limitation on who could seek remedies for their economic losses.
(Id. at pp. 408–411.) In fact, the geographic and temporal scope is
much broader than in Gas Leak Cases.
Second, San Diego argues not creating an exception to the
rule here will insufficiently deter Defendants’ conduct. But our
16
Supreme Court rejected a similar concern in Gas Leak Cases
because the defendant still faced liability for many other claims
arising from property damage. (Gas Leak Cases, supra, 7 Cal.5th
at p. 413.) Likewise, Defendants may still face individual
personal injury lawsuits from their users, claims for statutory
violations, and actions in abatement from appropriate
government authorities. And given the severe consequences
alleged, “the Legislature can . . . craft a solution in tune with
public demands,” possibly through “further industry-specific
legislative or regulatory action.” (Ibid.)
Third, San Diego’s brief repeatedly attributes a degree of
intentionality to Defendants by arguing they “targeted schools
with their platforms” and committed “deliberate misconduct,”
citing cases holding the economic loss rule does not apply in the
context of intentional torts. (See, e.g., Rattagan v. Uber
Technologies, Inc. (2024) 17 Cal.5th 1, 38 [“the economic loss rule
does not apply to limit recovery for intentional tort claims like
fraud”].) San Diego contrasts Defendants’ purported intentional
acts against the random “ ‘man-made disaster’ ” at issue in Gas
Leak Cases.
But unlike the plaintiffs in In re JUUL Labs, Inc.,
Marketing, Sales Practices (N.D.Cal. 2020) 497 F.Supp.3d 552,
611–612 (In re JUUL), San Diego did not plead any intentional
torts in its operative complaint, and we are concerned here with
its cause of action for negligence. (See Fisher v. Fisher (2026) 118
Cal.App.5th 899, 917 [the “scope of liability is broader for
intentional torts than for negligence”].) Even assuming San Diego
is correct that Defendants’ knowledge of the effects of their
platforms on schools shows the harm was foreseeable, this branch
of the economic loss rule requires “more than mere foreseeability”
17
to impose liability for purely economic loss. (Gas Leak Cases,
supra, 7 Cal.5th at p. 401; see also id. at pp. 402–403.)
San Diego urges us to join a federal district court that
declined to apply the economic loss rule to a similar negligence
claim. (See In re Social Media Adolescent Addiction (N.D.Cal.
2024) 754 F.Supp.3d 946, 978–979 (In re Social Media).) But that
court focused largely on proximate cause and derivative injury
arguments that are not at issue here. (Id. at pp. 964–972.) Its
analysis of the economic loss rule was truncated, no doubt in part
due to the court’s observation that the parties’ briefing on the
topic was brief and provided “little more than case citations.” (Id.
at p. 978.) The court concluded neither of the two “ ‘recurring . . .
circumstances’ ” in which the rule applied “is argued or appears
to apply.” (Id. at pp. 978–979.) We do not find this analysis
persuasive and are bound instead to follow our Supreme Court’s
admonition that “liability in negligence for purely economic losses
. . . is ‘the exception, not the rule’ ” in California. (Gas Leak
Cases, supra, 7 Cal.5th at p. 400.)
III. West Warwick Did Not State a Rhode Island
Negligence Cause of Action
The Rhode Island Supreme Court has held “[t]he economic
loss doctrine provides that ‘a plaintiff is precluded from
recovering purely economic losses in a negligence cause of
action,’ ” and thus, “may not recover damages under a negligence
claim when the plaintiff has suffered no personal injury or
property damage.” (Franklin Grove, supra, 936 A.2d at p. 1275.)
The rationale provided—that “ ‘it is appropriate for sophisticated
commercial entities to utilize contract law to protect themselves
from economic damages’ ” (ibid.)—demonstrates that in Rhode
Island, cases discussing the economic loss rule are focused on the
18
“contractual economic loss rule” as we described in part I.B.2.,
ante. Nonetheless, in reaching its decision, the Franklin Grove
court cited approvingly a New Jersey case for the broader
proposition that “[g]enerally speaking, tort principles, such as
negligence, are better suited for resolving claims involving
unanticipated physical injury, particularly those arising out of an
accident.” (Id. at p. 1276, quoting Spring Motors Distributors v.
Ford Motor Co. (N.J. 1985) 489 A.2d 660, 672.)
Rhode Island has carved out an exception to the rule
whereby certain consumers are not foreclosed from seeking
economic damages in tort: “When a cause of action arises under a
contract and a consumer lacks privity of contract with the
offending party, an action in tort remains available, even if the
damages are purely economic.” (Rousseau v. K.N. Const., Inc.
(R.I. 1999) 727 A.2d 190, 193 (per curiam).) The court referenced
its long tradition of providing an opportunity for recovery in cases
in which consumers deal with commercial entities, such as
implied warranties of good workmanship and habitability. (Ibid.)
Because this case does not arise under a contract, there is no
need to address West Warwick’s argument that the consumer
exception applies here.
The question remains whether Rhode Island permits
recovery for economic losses under a negligence theory in any
other context. West Warwick points to no case outside of the
contractual context in which a plaintiff was permitted to sue for
purely economic injuries.
To the contrary, the Rhode Island Supreme Court has
expressed skepticism of expanding tort liability for economic
losses in unprecedented directions that is identical to the
concerns articulated by our Supreme Court in Gas Leak Cases.
19
For example, in Builders Specialty, the plaintiff company’s
employee was injured by the negligence of a defendant driver, an
employee of defendant company operating a vehicle on the
plaintiff’s property. (Builders Specialty, supra, 639 A.2d at p. 60.)
The plaintiff employer brought a negligence action to recover its
financial losses “in the form of pension contributions on [its
employee’s] behalf, increased workers’ compensation insurance
premiums, and other related costs.” (Ibid.)
The court refused “to extend the scope of tort liability to
include an employer’s business losses associated with bodily
injury to an employee,” because that “expansion could lead to
devastating results which could only be dimly perceived and
would be practically unlimited.” (Builders Specialty, supra, 639
A.2d at p. 60.) The financial losses sustained by the plaintiff
employer “were ‘beyond the scope of foreseeability, and . . . no
duty was owed by [the defendants].’ ” (Ibid.; see also John
Rocchio Corp. v. Pare Engineering (R.I. 2019) 201 A.3d 316, 321,
fn. 5, 322–323 [despite holding the contractual economic loss rule
does not apply given the absence of a contract, it would be
“absurd” to hold that “all engineers contracted by project owners
owe a duty to all general contractors that could possibly submit a
bid on any given request for proposal”].)
While the Rhode Island Supreme Court in Builders
Specialty did not label this an aspect of the “economic loss rule,”
it was motivated by the same concern about the practically
unlimited scope of financial harms that drove our Supreme
Court’s discussion of that rule in Gas Leak Cases.
We conclude Rhode Island does not allow recovery for the
purely economic losses alleged by West Warwick here. We are
reluctant to create a new cause of action in Rhode Island that has
20
not previously been recognized. (Flynn, supra, 177 A.3d at
p. 481.) Whether framed as a lack of duty or as another facet of
the economic loss rule, the result is that under Rhode Island law,
Defendants owed no duty to West Warwick to avoid the purely
economic losses it alleged.
IV. Brevard Did Not State a Florida Negligence Cause of
Action
In Florida, a duty exists when a defendant’s “activity . . .
created a general zone of foreseeable danger of a certain type of
harm to others.” (Williams, supra, 974 So.2d at p. 1056, fn. 2; see
also McCain, supra, 593 So.2d at p. 502.) Because we conclude
Defendants’ conduct did not create a foreseeable zone of risk of
any cognizable harm to Brevard, we affirm the trial court’s
dismissal of Brevard’s negligence cause of action.
A. The Same Principles Underlying the Economic
Loss Rule Apply in Florida
Florida also recognizes a “general principle of common law
negligence” that precludes “recovery for purely economic losses
when the plaintiff has sustained no bodily injury or property
damage.” (Curd, supra, 39 So.3d at p. 1223; see also Monroe,
supra, 746 S.2d at p. 531 [“we continue to hold, as a general rule,
that bodily injury or property damage is an essential element of a
cause of action in negligence”].) While the court in Curd did not
expressly use the phrase “economic loss rule,” it went on to
analyze whether the commercial fishermen plaintiffs before it
“f[e]ll into a recognized exception to that general rule.” (See Curd,
at p. 1224.) We conclude Brevard’s negligence cause of action was
correctly dismissed because no exception applies (see pt. IV.B.,
post).
21
1. The Contractual Economic Loss Rule Is
Irrelevant
In addition to the general principle discussed above,
Florida also has what it does call the economic loss rule, which is
essentially the contractual economic loss rule we have already
discussed, as well as an application of that same rule in the
products liability context. Brevard argues this doctrine, excluding
claims for “purely economic losses,” pertains only to
“ ‘ “disappointed economic expectations” ’ ” and does not apply
here.
Brevard draws its understanding from the Florida Supreme
Court’s discussion of the economic loss rule in the contexts of a
contractual relationship or products liability action. (See
Indemnity Ins. Co. v. American Aviation (Fla. 2004) 891 So.2d
532, 536–538 (Indemnity); Tiara Condo. Ass’n, Inc. v. Marsh &
McLennan Co. (Fla. 2013) 110 So.3d 399, 400.) But as noted
above, we are not applying the contractual economic loss rule
here, nor does this case arise in the product liability context. The
rule identified by Indemnity is conceptually distinct from the
more general tort law concern about amorphous and
indeterminate liability. (See Curd, supra, 39 So.3d at p. 1223
[distinguishing “the economic loss rule,” which did not apply,
from “general tort law principles” barring recovery for “ ‘purely
economic interests’ ”].)
Indemnity reiterated that cases not falling into the contract
or product liability contexts should still be decided on traditional
negligence principles of duty, breach, and proximate cause, and
the Supreme Court returned the case to the Eleventh Circuit,
noting only “[i]f [the defendant] owed [the plaintiff] a duty, then
[the plaintiff] is not prevented from recovering for purely
22
economic injuries.” (Indemnity, supra, 891 So.2d at pp. 543–544;
see also id. at pp. 544–546, conc. opn. of Cantero, J. [“[O]ur
limitation of the rule will not open the gates to widespread tort
recovery for purely economic losses. . . . [P]laintiffs whose cases
fall outside of the economic loss rule must still prove ‘duty,
breach, and proximate cause.’ . . . [¶] . . . [¶] . . . The ‘duty’ prong
remains a strong filter in these cases—virtually as strong as the
rule itself.”].)
B. Defendants Did Not Have a Duty to Prevent
Brevard’s Economic Harms
Both parties claim that the Florida Supreme Court’s
decision in Curd provides support for their position. In Curd,
plaintiff commercial fishermen sued a polluter whose wastewater
killed various marine life in Tampa Bay, damaging the
reputation of the fishery products and resulting in lost income.
(Curd, supra, 39 So.3d at pp. 1218–1219.) The court held that
while the (contractual and products liability) economic loss
doctrine as described above did not apply, the proper analysis,
consistent with its previous decision in Indemnity, was to
consider whether defendant owed the fishermen a duty in this
context. (Curd, at p. 1223.)
The court then canvassed cases throughout the country,
including California, to illustrate that “[a]s a general principle of
common law negligence, some courts have not permitted recovery
for purely economic losses when the plaintiff has sustained no
bodily injury or property damage.” (Curd, supra, 39 So.3d at
p. 1223.) After concluding the fishermen fell into an accepted
exception to this general rule, the court held the “defendant owed
a duty of care to the commercial fishermen” to support a common
law negligence claim. (Id. at p. 1227.)
23
The court reasoned the defendant’s activities created an
“appreciable zone of risk” within which it was obligated to protect
those who were exposed to harm; it was foreseeable the
pollutants stored by the defendant would damage marine and
plant life if released into public waters; and the commercial
fishermen plaintiffs “had a special interest” within the
foreseeable zone of risk not shared by the general public. (Curd,
supra, 39 So.3d at pp. 1227–1228.)
Brevard argues that even assuming Florida recognizes a
broad economic loss principle, it should also be permitted to
recover for its economic losses under the Curd holding. We
disagree. Here, there was no “appreciable zone of risk” within
which Defendants were obligated to protect third parties like
Brevard from economic harms, and Brevard has no recognized
special interest comparable to the unique commercial fishing
exception. (See Curd, supra, 39 So.3d at p. 1228.)
1. Foreseeable Zone of Risk
As to whether Brevard has adequately stated its economic
harms are within a foreseeable zone of risk from Defendants’
platforms, with the exception of Curd, Brevard cites no Florida
cases recognizing any purely economic harms falling within a
foreseeable zone of risk for purposes of a negligence cause of
action. Instead, Brevard relies upon cases exclusively discussing
physical harms within that zone. (See, e.g., McCain, supra, 593
So.2d at p. 504; Williams, supra, 974 So.2d at pp. 1055–1056,
1062; City of Pinellas Park v. Brown (Fla. 1992) 604 So.2d 1222,
1224–1225; Pate v. Threlkel (Fla. 1995) 661 So.2d 278, 279–281;
U.S. v. Stevens (Fla. 2008) 994 So.2d 1062, 1064, 1067–1069.)
We do not agree with Brevard’s apparent assumption that
the zone of risk analysis from those cases can readily be
24
transplanted to allegations of economic harm alone. First, if
Brevard’s assumption were correct, one would expect to find some
Florida cases applying the zone of risk analysis in that context,
but we do not.
Second, as we explained in part I.B.2., ante, courts
generally treat economic harms differently from physical harms
precisely because foreseeability “ ‘ “provides virtually no limit on
liability for nonphysical harm.” ’ ” (Gas Leak Cases, supra,
7 Cal.5th at p. 401.) Florida courts are likewise sensitive to the
over inclusiveness that would result from a mere foreseeability
standard. (See Firestone Tire & Rubber Co. v. Lippincott
(Fla.Ct.App. 1980) 383 So.2d 1181, 1182 [“Foreseeable
consequences are not ‘what might possibly occur.’ ”]; see also
Johnson v. Wal-Mart Stores East, LP (Fla.Ct.App. 2024) 389
So.3d 705, 709 [the harm at issue “ ‘must have been reasonably
foreseeable, not just possible’ ”]; Saunders, supra, 361 So.3d at
p. 369.) At least one Florida Court of Appeal has rejected claims
for purely economic loss under traditional negligence principles
because the risk of incurring such loss “is simply not the type of
risk that the law places within the ‘zone of risk’ utilized to define
the general standards of care in negligence cases.” (Monroe,
supra, 746 So.2d at p. 538.)
The three federal district court cases upon which Brevard
relies neither materially address the reasonable foreseeability of
the harms at issue, nor distinguish between physical and
economic harms for purposes of Florida’s foreseeable zone of risk
analysis. (In re Nat. Prescription Opiate Litigation (N.D.Ohio
2020) 452 F.Supp.3d 745, 786; In re JUUL, supra, 497 F.Supp.3d
at pp. 655–657; In re Social Media, supra, 754 F.Supp.3d at
25
pp. 973–975.8) We therefore do not find them persuasive on this
issue.
In the alternative, Brevard argues even if Curd’s
foreseeable zone of risk analysis does not apply, it still alleged
Defendants owed it a duty because of an “ ‘extraordinary
circumstance.’ ” Because we conclude the foreseeable zone of risk
analysis of Curd applies, we do not consider that issue further.
2. Special Interest
Brevard argues it “had a ‘special interest’ ” comparable to
that found in Curd “because it is ‘constitutionally and statutorily
charged’ with its students’ education and welfare.” We disagree.
Curd was narrowly premised on the unique harms pollution
inflicts upon licensed commercial fishermen, whose interests are
distinctly special in part because “ ‘seamen are the favorites of
admiralty.’ ” (Gas Leak Cases, supra, 7 Cal.5th at p. 406; see
Curd, supra, 39 So.3d at pp. 1224–1227; Lucarelli Pizza & Deli v.
Posen Const. (Fla.Ct.App. 2015) 173 So.3d 1092, 1095; Virgilio v.
Ryland Group, Inc. (11th Cir. 2012) 680 F.3d 1329, 1339, fn. 31.)
8 In re Social Media acknowledges the risk of harm must be
reasonably foreseeable, but the Florida cases it relied upon
involved physical injury, and in each, the courts found a lack of
duty despite foreseeability. (In re Social Media, supra, 754
F.Supp.3d at pp. 973–975; Grieco v. Daiho Sangyo, Inc.
(Fla.Ct.App. 2022) 344 So.3d 11, 26 [“Taken to its logical
extension, appellant’s theory of liability . . . could allow almost
limitless legal responsibility relating to any ordinary consumer
product which a driver could conceivably and improperly use to
cause injury or damage”]; Sewell v. Racetrac Petroleum, Inc.
(Fla.Ct.App. 2017) 245 So.3d 822, 824–825 [limiting landowner
liability and noting in a few “ ‘exceptional’ ” areas of the law, “a
legal duty is sometimes not recognized or is substantially
curtailed even if the risk is foreseeable”].)
26
Brevard cites no case recognizing a similar special interest
exception for education under Florida, or any state, law.
In its reply brief, Brevard acknowledges its interest is
different than the one asserted in Curd, but argues it is
nonetheless “ ‘special’ . . . because [it is] ‘not shared by the
general community.’ ” But Curd does not suggest all interests
“not shared by the general community” amount to “special
interest[s].” (Curd, supra, 39 So.3d at p. 1228.) In any event, the
trial court correctly recognized many other entities could allege
increased costs arising from alleged mental health injuries to
students. Brevard points to no case from any jurisdiction
recognizing a special interest exception for such entities as public
school districts.
V. The Intangible Harms Alleged by San Diego, West
Warwick, and Brevard Are Not Recoverable in
Negligence
One reason San Diego, West Warwick, and Brevard each
argue the economic loss rule does not apply to their negligence
causes of action is they “alleged noneconomic injuries, including
(1) frustration of [their] educational mission; and (2) lost staff
time.” But those harms are not cognizable in a California,
Florida, or Rhode Island negligence cause of action.
San Diego, Brevard, and West Warwick have not identified
any case from their respective jurisdictions recognizing a duty to
avoid those kinds of injuries.
Rather, San Diego, Brevard, and West Warwick cite
various federal standing cases to argue their harms are
“noneconomic injur[ies].” Those cases are not helpful here.
Federal court jurisdiction is limited by Article III of the United
States Constitution, including the requirement a plaintiff has
27
suffered a concrete injury giving him standing, whether he is
seeking damages, statutory penalties, or injunctive relief. (See
Spokeo, Inc. v. Robins (2016) 578 U.S. 330, 337–339.)
“[I]ntangible injuries” (id. at p. 340), including “noneconomic
injur[ies],” (Gladstone, Realtors v. Village of Bellwood (1979) 441
U.S. 91, 112) can be sufficiently concrete for that purpose. But we
are not a federal court and are not concerned with Article III
standing. Instead, we must follow state negligence law, which
identifies only certain injuries as cognizable.
San Diego, West Warwick, and Brevard all rely upon an
unpublished federal court decision from the District of Idaho in
which the economic loss doctrine did not bar an organization’s
Idaho negligence claim because the plaintiff alleged its mission
had been frustrated. (Intermountain Fair Housing Council, Inc. v.
Tomlinson & Associates, Inc. (D.Idaho Mar. 29, 2023, No. 1:21-cv-
00506-BLW) 2023 WL 2710565 at p. *11.) But Intermountain
relied upon federal cases discussing noneconomic injuries that
sufficed for Article III standing. (Intermountain, at p. *11.)
Because neither Article III standing nor Idaho law is at issue,
Intermountain does not provide a sufficient basis to allow these
plaintiffs to sue for intangible injuries under the tort law of these
states.
Nor do we find support for this broad principle in an
unpublished federal court decision from the Northern District of
California holding “the economic loss doctrine does not apply” to a
California negligence cause of action when a plaintiff lost time
responding to a data breach. (Schmitt v. SN Servicing
Corporation (N.D.Cal. Aug. 9, 2021, No. 21-cv-03355-WHO) 2021
WL 3493754 at p. *6.) The Schmitt case, and the federal district
court cases upon which it relied (arising in the context of data
28
breaches), do not explain their reasoning. (Ibid.) We therefore do
not find those federal cases instructive on the issue, particularly
in the face of contrary state law. (See Moore v. Centrelake
Medical Group, Inc. (2022) 83 Cal.App.5th 515, 536–537 [lost-
time damages are not noneconomic losses exempt from the
economic loss rule].)
VI. Defendants Are Immune from Liability Arising from
Challenge Videos
Property damage is a traditional injury recoverable in
negligence. (See Gas Leak Cases, supra, 7 Cal.5th at p. 398;
Franklin Grove, supra, 936 A.2d at p. 1275; Monroe, supra, 746
S.2d at p. 531.) However, Plaintiffs9 do not allege Defendants
directly damaged their property; instead, they allege Defendants’
platforms influenced students to vandalize school property
because the platforms showed them so-called “challenge videos,”
created by third parties, that encouraged vandalizing school
property.10 The trial court determined federal law provided
Defendants immunity from liability arising from the challenge
videos. We agree.
Section 230 of title 47 of the United States Code (section
230) “confer[s] ‘broad immunity for providers who ‘use the
Internet to publish information that originated from another
9 Vancouver did not plead a negligence cause of action, but
Defendants are also immune from liability for Vancouver’s public
nuisance cause of action to the extent it is premised upon
challenge videos.
10 The complaints also alleged property damage caused by
student users whose mental health was harmed by Defendants’
platforms, but at oral argument, Plaintiffs confirmed they have
not pursued that theory on appeal.
29
source.’ ” (Six4Three, LLC v. Facebook, Inc. (2025) 109
Cal.App.5th 635, 655.) Its elements are: “ ‘(1) the defendant [is] a
provider or user of an interactive computer service; (2) the cause
of action treat[s] the defendant as a publisher or speaker of
information; and (3) the information at issue [is] provided by
another information content provider.’ ” (Ibid.)
Plaintiffs’ reply briefs acknowledge this test, and concede
Defendants are providers of interactive computer services within
the meaning of section 230. (See § 230(f)(2).) Plaintiffs do not
appear to dispute the challenge videos are information provided
by third parties.
Plaintiffs also acknowledge that a cause of action treats a
defendant as a publisher when liability is premised upon the
exercise of “ ‘a publisher’s traditional editorial functions–such as
deciding whether to publish, withdraw, postpone or alter
content.’ ” (Barrett v. Rosenthal (2006) 40 Cal.4th 33, 43.)
Plaintiffs’ causes of action premised on property damage
inflicted by students who watched challenge videos arise from
Defendants’ decision to publish those videos. As explained in
Plaintiffs’ opening briefs, those claims crucially turn on the
content of the third party challenge videos—e.g., “ ‘social media
challenges that direct destruction or theft of school property.’ ”
The claims are not content agnostic; they do not remain the same
regardless of the types of videos the students watched. Rather,
the claims are quintessentially “about the content of third-party
posts” and “what happens when some users interact with
[allegedly] bad content,” (e.g., challenge videos). (Doe 1 v. Meta
Platforms, Inc. (9th Cir. 2026) 174 F.4th 1159, 1168; M.P. by &
through Pinckney v. Meta Platforms (4th Cir. 2025) 127 F.4th
516, 525.)
30
Plaintiffs’ opening briefs argued Defendants’ algorithm that
showed the challenge videos to students was their own expressive
activity, and thus, Defendants could not avail themselves of
section 230 immunity which applies only when a defendant is
“sued for someone else’s expressive activity.” (Anderson v.
TikTok, Inc. (3d Cir. 2024) 116 F.4th 180, 183; see also Moody v.
NetChoice, LLC (2024) 603 U.S. 707, 731–732.) But even if “a
plaintiff may avoid application of section 230 immunity by
alleging a negligent design claim that is independent of third
party content, that is not what [P]laintiffs alleged . . . here.”
(Wozniak, supra, 100 Cal.App.5th at p. 913.) As we explained,
Plaintiffs’ negligence causes of action, to the extent they are
premised on property damage inflicted as a result of challenge
videos, turn on the content of those videos.
Thus, the trial court correctly determined Defendants were
immune from liability arising from property damage caused by
challenge videos.
VII. Vancouver Did Not Adequately Plead a Washington
Public Nuisance Cause of Action
A. We Assume Vancouver Alleged a Health
Nuisance
“ ‘Public nuisance’ is a type of nuisance,” and both terms
are defined in Washington by statute. (Animal Legal, supra, 533
P.3d at p. 1172; see also Wash. Rev. Code, § 7.48.120 [defining
“nuisance”]; Wash. Rev. Code, § 7.48.130 [“[a] public nuisance is
one which affects equally the rights of an entire community or
neighborhood”].) The Washington Supreme Court has recognized
“the statutory definition of nuisance is expansive,” but case law
has limited its scope in practice. (Animal Legal, at p. 1172.) As
relevant here, “an actionable nuisance ‘must either injure the
31
property or unreasonably interfere with the enjoyment of the
property,’ ” or “affect the peace of mind or health of residents and
destroy property values of the neighborhood.” (Ibid.)
Vancouver argues it pled Defendants’ platforms were a
public nuisance because they “threatened public health[,]
interfered in the use and enjoyment of property,” and “affected
equally the rights of ‘an entire community’ to health and/or
education.”
For purposes of this opinion, we assume Vancouver’s
allegations that Defendants’ platforms affected public health
sufficiently alleged a nuisance under Washington law. Thus, we
need not discuss Vancouver’s arguments its nuisance claim can
be predicated on Defendants’ allegedly negligent conduct 11 or it
sufficiently alleged Defendants’ conduct interfered with its use
and enjoyment of property, nor do we consider Defendants’
argument Washington law requires a nuisance “involve[]
dangerous conditions on property.”
However, we reject Vancouver’s argument that conduct
violating “the right to education” of a community amounts to a
public nuisance. While the parties rely upon out-of-state
authority to argue the adequacy of Vancouver’s pleading of
interference with a “public right,” that term does not appear in
Washington’s nuisance statutes or case law.
The Washington Supreme Court has explained public
nuisances rarely comprise “interferences unrelated to property
rights or public health and safety,” (Animal Legal, supra, 533
11 Because our decision does not turn on whether Vancouver’s
“public nuisance claim was simply a restated negligence claim,”
we do not address Vancouver’s argument it should receive leave
to amend to assert a negligence claim.
32
P.3d at p. 1174) and expressed its reluctance “to expand the scope
of nuisance law” beyond circumstances previously recognized in
statute and case law (id. at p. 1175). None of the nuisance cases
cited by Vancouver mentions a public right to education. (See
Kitsap County v. Kev, Inc. (Wash. 1986) 720 P.2d 818, 821; Lewis
County v. Bonagofski (Wash.Ct.App. June 28, 2007, No. 34454–8–
II) 2007 WL 1847319 at p. *6; Chelan Basin Conservancy v. GBI
Holding Co. (Wash. 2018) 413 P.3d 549, 561.) We must follow the
Washington Supreme Court’s decision not to expand nuisance
law beyond its existing confines.
B. Vancouver Failed to Plead the Health of An
Entire Community Was Affected Equally
We conclude Vancouver has not sufficiently alleged a public
health nuisance. “A public nuisance is one which affects equally
the rights of an entire community or neighborhood, although the
extent of the damage may be unequal.” (Wash. Rev. Code,
§ 7.48.130.) At oral argument, Plaintiffs conceded a public health
nuisance must affect the health of an entire community.
Vancouver argues it adequately alleged Defendants’ conduct
affected “the right to health of” the communities of
“(1) [Vancouver’s] student users of Defendants’ platforms and/or
(2) all of [Vancouver’s] students.” We do not agree.
The cases cited by Vancouver appear to incorporate an
aspect of geographic proximity when defining a community under
Washington law. (See, e.g., Kitsap Co. v. Kitsap Rifle & Revolver
Club (Wash.Ct.App. 2014) 337 P.3d 328, 344 (Kitsap Rifle) [trial
court “implicitly identifie[d] the relevant ‘community’ as the area
within two miles of the [shooting range]”].) But even assuming,
without deciding, Vancouver’s identified communities are
cognizable for purposes of its Washington public nuisance cause
33
of action, we conclude Vancouver failed to allege a public
nuisance that “affects equally” the health of either of those
“entire communit[ies].” (Wash. Rev. Code, § 7.48.130.)
Nothing in Vancouver’s complaint suggests the health of
the entire community of either “(1) [Vancouver’s] student users of
Defendants’ platforms [or] (2) all of [Vancouver’s] students” was
“affect[ed] equally” by the platforms. Rather, Vancouver alleged:
(1) some young users of the platforms use them frequently or
even compulsively; (2) some of those frequent or compulsive
young users experience mental health problems as a result;
(3) many of Vancouver’s students use the platforms, including
some who use them compulsively; and (4) Vancouver’s counselors
“have seen an increased number of students . . . struggling with
anxiety and other social issues tied to social media.” But none of
that suggests the mental health of the entire community of
Vancouver’s student users was “affect[ed] equally” by the
platforms, let alone the mental health of Vancouver’s entire
student body (i.e., users and nonusers alike).
Vancouver essentially admits its complaint does not make
that allegation, but it argues “[t]he fact that not all of [its]
student users of Defendants’ platforms may have suffered mental
health problems . . . is immaterial ‘because [that] relates to the
extent of damage caused by the condition, which need not be
equal.’ ” We do not agree.
It is of course true that not all community members must
suffer the same degree of damage or injury from a public
nuisance. (Kitsap Rifle, supra, 337 P.3d at p. 344.) Thus, in
Kitsap Rifle, noise emanating from a shooting range was a public
nuisance, even though some “witnesses . . . stated that the noise
. . . did not disturb them.” (Ibid.) Nevertheless, the noise was a
34
public nuisance that affected everyone within two miles of the
range, in part because “every neighbor testifying discussed the
noise.” (Ibid.; see also State v. Mitchell (Wash. 1946) 171 P.2d
245, 247.)
In contrast, there are no similar allegations the mental
health of the entire community of Vancouver’s student users has
been affected by Defendants’ platforms. Instead, a generous
reading of the complaint alleges some users were so affected.
Without minimizing the harms to those students, that is not
enough to state a claim for public nuisance under Washington
law.
Nor did Vancouver allege Defendants’ platforms affected
the health of its entire student body. That nonuser students were
“impact[ed]” by students with mental health issues—which the
complaint suggests was because school services for user students
came “at the expense of the educational goals and experience for
the larger student body”—does not mean the health of nonuser
students was affected by the platforms, within the meaning of
Washington public nuisance law.
Thus, we affirm the trial court’s sustaining of Defendants’
demurrer to the Washington public nuisance cause of action, and
we need not address Vancouver’s additional argument it had
standing.
VIII. Brevard Did Not Adequately Plead a Public
Nuisance Under Florida Law
A. Florida Recognizes Nuisances Affecting Public
Health
In Florida, “[i]t is not possible to define comprehensively
‘nuisances’ as each case must turn upon its facts and be judicially
determined.” (Orlando Sports Stadium, Inc. v. State ex rel. Powell
35
(Fla. 1972) 262 S.2d 881, 884 (Orlando).) In various
circumstances, Florida courts have recognized nuisances affecting
public health. (See, e.g., State ex rel. Brown v. Sussman
(Fla.Dist.Ct.App. 1970) 235 So.2d 46, 48 [allegations of health
hazards were a public nuisance]; Florio v. State (Fla.Ct.App.
1960) 119 So.2d 305, 308–309 [waterskiing businesses created a
nuisance in part by creating dangers for fishing, swimming and
skiing, that affected the health of the community]; see also Fla.
St., § 386.041 [describing sanitary nuisances].)
But Florida has not recognized activity that “violate[s] the
public right to education” as a nuisance. Brevard broadly defines
“a public nuisance [as] ‘something that causes “any annoyance to
the community or harm to public health” ’ (Flo-Sun, Inc. v. Kirk
(Fla. 2001) 783 So.2d 1029, 1036 . . . ), ‘violates public rights,’ ‘or
causes inconvenience or damage to the public generally.’ ” Even
assuming Brevard’s broad definition of public nuisance is
generally accurate, Brevard cites no cases finding a nuisance
violating a public right to education–from Florida or any other
jurisdiction. While the Florida Constitution provides “[t]he
education of children is a fundamental value” (art. IX, § 1(a),
italics added), that does not mean education is a public right
whose alleged violation can be remedied in a public nuisance
cause of action. (See Lead Industries, supra, 951 A.2d at p. 448
[distinguishing public interests from public rights].)
B. Brevard Failed to Adequately Allege a Public
Nuisance
Even if an act infringing on public health can amount to a
nuisance, we must decide whether the allegations here amount to
a public nuisance claim under Florida law.
36
As Brevard recognizes, a public nuisance is different from a
private nuisance because it “ ‘affects the public’ ” and “ ‘annoys
the whole community, in general, and not merely some particular
person.’ ” (Prior, supra, 180 So. at p. 355.) Florida also recognizes
“ ‘a public nuisance . . . affects an entire community or any
considerable number of persons.’ ” (Ibid.) “ ‘To be reckoned as
“considerable,” the number of persons affected need not be shown
to be “very great.” Enough that so many are touched by the
offense and in ways so indiscriminate and general that the
multiplied annoyance may not unreasonably be classified as a
wrong to the community.’ ” (Bartlett v. Moats (Fla. 1935) 162 So.
477, 480 (Bartlett).) Thus, under Florida law, a nuisance is public
when it affects people “in ways so indiscriminate and general”
that it amounts to “ ‘a wrong to the community.’ ” (Ibid., quoting
People v. Rubenfeld (N.Y. 1930) 172 N.E. 485, 486.)
Brevard’s opening brief suggests the health of the following
communities are affected by Defendants’ platforms: (1) the
nation’s youth; and (2) Brevard’s student body. Again, assuming
those are cognizable communities for purposes of Florida
nuisance law, Brevard’s complaint does not allege the platforms
have indiscriminately harmed the mental health of either. To be
sure, the complaint alleges the “platforms can cause addiction,
compulsive use, anxiety, depression, eating disorders, . . . and
suicide,” and Brevard’s “counselors have seen an increased
number of students . . . struggling with anxiety . . . tied to social
media.” But while those injuries may be serious for some
students, the complaint alleges it is a subset of young users of the
platforms who can experience those mental health issues. As
with the allegations in Vancouver’s complaint (see pt. VII.B.,
ante), Brevard’s complaint does not allege that the health of
37
Brevard’s students, let alone of any broader community, was
affected indiscriminately or generally by the platforms.
The trial court correctly held that Cunningham v. Anchor
Hocking Corp. (Fla.Ct.App. 1990) 558 So.2d 93 supported the
conclusion the harms alleged here were not sufficiently
indiscriminate and general to amount to a public nuisance. In
Cunningham, 21 factory workers suffered ill health after they
were exposed to toxic substances at their workplace. (Id. at p. 94.)
Dismissal of the public nuisance cause of action was affirmed
because the plaintiffs “failed to allege injury to ‘the health of the
citizens in general,’ ” and instead alleged merely an effect upon
“certain individuals.” (Id. at p. 97.) Similarly, Brevard has failed
to allege the mental health of all users or of all youth is
indiscriminately affected by Defendants’ platforms.
While Brevard argues Cunningham “is inconsistent with
the Florida Supreme Court’s recognition that a public nuisance
affects ‘any considerable number of persons,’ ” we disagree. That
terminology does not eliminate the community impact
requirement from public nuisance, but simply means “ ‘[e]nough
. . . are touched by the offense and in ways so indiscriminate and
general that the multiplied annoyance may not unreasonably be
classified as a wrong to the community.’ ” (Bartlett, supra, 162 So.
at p. 480.) Thus, while we agree there is no specific numerosity
requirement, as for example when a particular community is
small, a plaintiff cannot merely add up multiple individual
injuries to state a claim for public nuisance.
The federal district court cases upon which Brevard relies
state the alleged epidemics at issue—arising from e-cigarettes
and social media—“ ‘affected a considerable number of persons,’ ”
(In re Social Media Adolescent Addiction/Personal
38
Injury/Products Liability Litigation (N.D.Cal. Nov. 15, 2024,
No. 4:22-md-3047-YGR) 2024 WL 5694360 at p. *13, quoting In re
JUUL, supra, 497 F.Supp.3d at p. 648) and those defendants
“fail[ed] to rebut . . . that their conduct as alleged interferes with
[the] common right” to public health (id. at p. *14; In re JUUL, at
p. 648 [accepting as true the allegations of “a public health crisis
of youth e-cigarette use and wholesale addiction of kids to
nicotine”]). But In re Social Media Adolescent Addiction, at pages
*13 through *14, did not cite Florida authority in its discussion,
and In re JUUL, at pages 647 through 648 and footnotes 73 and
74, did not discuss Florida’s definition of “considerable number of
persons.” We therefore do not find those federal cases helpful.
Because we conclude Brevard’s public nuisance cause of
action fails on that ground, we do not address the trial court’s
conclusion it was a disguised products liability or negligence
cause of action, or an improper substitute for legislative
regulation. We also do not consider whether Brevard adequately
pled standing.
IX. San Diego Did Not Adequately Plead Standing to
Bring a Public Nuisance Claim
A. Public Nuisance in California
California nuisance is broadly defined by statute as
“[a]nything which is injurious to health, including, but not
limited to, the illegal sale of controlled substances, or is indecent
or offensive to the senses, or an obstruction to the free use of
property, so as to interfere with the comfortable enjoyment of life
or property, or unlawfully obstructs the free passage or use, in
the customary manner, of any navigable lake, or river, bay,
stream, canal, or basin, or any public park, square, street, or
highway, is a nuisance.” (Civ. Code, § 3479; see also U.S.
39
Gypsum, supra, 30 Cal.App.4th at p. 585 [nuisance has a “broad
statutory definition”].)
Public nuisance is defined by statute as “one which affects
at the same time an entire community or neighborhood, or any
considerable number of persons, although the extent of the
annoyance or damage inflicted upon individuals may be
unequal.”12 (Civ. Code, § 3480.) “[P]ublic nuisances are offenses
against, or interferences with, the exercise of rights common to
the public.” (Gallo, supra, 14 Cal.4th at p. 1103.) “It is [the]
community aspect of the public nuisance . . . that distinguishes it
from its private cousin,” and makes it suitable “to protect the
quality of organized social life.” (Id. at p. 1105.)
Perhaps because of those broad definitions, our Legislature
has codified who has standing to bring a public nuisance action.
(See Civ. Code, §§ 3493–3494; Code Civ. Proc., § 731.) Certain
persons may bring an action for public nuisance when it is
“specially injurious” to them (Civ. Code, § 3493) or when their
property is “injuriously affected or [their] personal enjoyment is
lessened.” (Code Civ. Proc., § 731.)
By contrast, a “public body or officer authorized thereto”
can bring an action to abate a public nuisance. (Civ. Code,
§ 3494.) And the State or designated county or city officials, in
their representative capacities, can bring an action limited to
abatement under Code of Civil Procedure section 731. (Selma
Pressure Treatment Co. v. Osmose Wood Preserving Co. (1990)
221 Cal.App.3d 1601, 1613 (Selma Pressure), disapproved on
other grounds by Johnson v. American Standard, Inc. (2008)
12 Private nuisance is separately defined (Civ. Code, § 3481),
but we do not discuss it because San Diego’s cause of action is for
public nuisance only.
40
43 Cal.4th 56, 70.) San Diego’s action, however, is not limited to
abatement, but seeks damages for harms allegedly caused by the
nuisance.
The only recognized exception to the limitation on remedy
is that a public entity may seek damages when it sues in its role
as a property owner. (Selma Pressure, supra, 221 Cal.App.3d at
p. 1614, citing Code Civ. Proc., § 731; see also Atlantic Richfield,
supra, 137 Cal.App.4th at pp. 309–310.)
While San Diego makes a number of arguments related to
its public nuisance theory, some of which have divided our fellow
Courts of Appeal,13 we need not parse them in detail because San
Diego failed to adequately allege its standing to bring a public
nuisance cause of action. (See Martin v. Bridgeport Community
Assn., Inc. (2009) 173 Cal.App.4th 1024, 1031 [“Standing is the
threshold element required to state a cause of action. . . .”].)
B. San Diego Lacks Standing Under Civil Code
Section 3493
San Diego first argues it has standing under Civil Code
section 3493. That statute expressly allows “[a] private person” to
bring a public nuisance action. (Ibid.) San Diego is a public school
district. For purposes of this analysis, we assume a public entity
like San Diego is a “person[].” (See Wells v. One2One Learning
Foundation (2006) 39 Cal.4th 1164, 1193.)
But San Diego is not a “private person.” “[P]rivate person”
under Civil Code section 3493 has been likened to a “private
individual.” (City Store v. San Jose-Los Gatos etc. Co. (1907) 150
13 Compare U.S. Gypsum, supra, 30 Cal.App.4th at page 586
(nuisance liability not available for a defective product) with
Atlantic Richfield, supra, 137 Cal.App.4th at page 309 (nuisance
liability available for knowing promotion of a hazardous product).
41
Cal. 277, 279; see also Buchanan v. Los Angeles County Flood
Control Dist. (1976) 56 Cal.App.3d 757, 768.) Our fellow Courts of
Appeal have uniformly concluded government entities are not
“private person[s]” for purposes of section 3493. (See City of Los
Angeles v. Shpegel-Dimsey, Inc. (1988) 198 Cal.App.3d 1009,
1020; Rincon Band of Luiseño Mission Indians etc. v. Flynt (2021)
70 Cal.App.5th 1059, 1101; see also Orange County Water Dist. v.
Sabic Innovative Plastics US, LLC (2017) 14 Cal.App.5th 343,
402, fn. 26 (Orange County Water) [statutory basis for a public
agency to bring a nuisance cause of action is Code Civ. Proc.,
§ 731].)
San Diego points to cases analyzing Code of Civil Procedure
section 731 to support its argument to the contrary, but that
statute applies broadly to “any person,” (ibid.), not just “[a]
private person” (Civ. Code, § 3493). The difference in terminology
suggests “the Legislature intended a difference in meaning” for
those terms. (People v. Trevino (2001) 26 Cal.4th 237, 242.) Thus,
cases analyzing Code of Civil Procedure section 731 do not show a
government entity is “[a] private person” for purposes of Civil
Code section 3493. (See Selma Pressure, supra, 221 Cal.App.3d at
p. 1614; Orange County Water, supra, 14 Cal.App.5th at p. 402,
fn. 26.)
We join our fellow Courts of Appeal in concluding the term
“private person” in Civil Code section 3493 excludes government
entities like San Diego here. Thus, we need not reach the issue
whether San Diego adequately pled it suffered a special injury for
purposes of that statute.
42
C. San Diego Lacks Standing Under Code of Civil
Procedure Section 731
In the alternative, San Diego argues it may bring a public
nuisance cause of action pursuant to Code of Civil Procedure
section 731. That statute provides “[a]n action may be brought by
any person whose property is injuriously affected, or whose
personal enjoyment is lessened by a nuisance, as defined in
Section 3479 of the Civil Code,” and damages may be recovered.
(Ibid.)
San Diego first raised this argument on appeal. Even
exercising our discretion to consider the forfeited argument, we
find it unavailing. (See Wittenberg v. Bornstein (2020) 51
Cal.App.5th 556, 565.) San Diego’s complaint did not adequately
plead its property was “injuriously affected” or its “personal
enjoyment [was] lessened” by the alleged nuisance of Defendants’
platforms. (See Code Civ. Proc., § 731.) We have already
concluded San Diego failed to plead property damage resulting
from Defendants’ platforms. (See pts. II.A. & VI., ante; see also
§ 230.) And our review of the complaint reveals that it does not
allege a “substantial” and “unreasonable” interference with San
Diego’s use and enjoyment of its property. (San Diego Gas &
Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 938, italics
omitted; see also Mendez v. Rancho Valencia Resort Partners,
LLC (2016) 3 Cal.App.5th 248, 262.)
Rather, the complaint’s focus throughout its 286 pages is on
the “unprecedented mental health crisis” among students and its
disruption to schools’ public educational mission. It contains only
isolated, conclusory allegations in a few paragraphs that
Defendants’ conduct “adversely impacts [San Diego’s] use and
enjoyment of its property,” and Defendants’ nuisance “is
43
connected to [San Diego’s] property, and its use and enjoyment of
the same.” San Diego’s opening brief argues that “Defendants’
conduct interfered with [San Diego’s] use of school property” by
disrupting school operations and forcing it to divert scarce
resources from its educational mission.
Any connection to property here is abstract at best.
Accepting San Diego’s position would convert virtually any
personal injury affecting a property owner into a nuisance. For
example, consider a homeowner whose son breaks his leg in a car
accident with a negligent driver, rendering him unable to use the
stairs in the home. Even if the homeowner must spend time and
resources to help her son navigate the home, she has no nuisance
cause of action against the driver on the ground the driver
interfered with her use and enjoyment of her property.
The alleged injury here is outside the scope of the plain
language of Code of Civil Procedure section 731. (Cf. Selma
Pressure, supra, 221 Cal.App.3d at pp. 1617–1618; see also id. at
p. 1617 [state had a legally cognizable property interest in
groundwaters affected by disposal of hazardous waste under
§ 731, noting “ ‘[p]ollution of the ground and river waters is
damage to public property’ ”].) For those reasons, San Diego
failed to adequately allege its standing under section 731.
* * *
Because all Plaintiffs’ causes of action fail for the reasons
discussed, we do not consider whether they are entirely barred by
section 230 and the First Amendment to the United States
Constitution.
44
DISPOSITION
The judgment is affirmed. The parties shall bear their own
costs on appeal. (See Cal. Rules of Court, rule 8.278(a)(5).)
RICHARDSON, J.
WE CONCUR:
LUI, P. J.
GOORVITCH, J.
45