Ning Xianhua v. OATH HOLDINGS, INC., DBA Yahoo! Inc.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NING XIANHUA,
Plaintiff-Appellant,
v.
OATH HOLDINGS, INC., DBA Yahoo!
Inc., and as successor in interest to Yahoo!
Inc.; ALTABA INC., FKA Yahoo! Inc., and
as successor in interest to Yahoo! Inc.;
TERRY SEMEL; JERRY YANG,
Defendants-Appellees.
No. 22-15700
D.C. No. 4:20-cv-06185-HSG
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Haywood S. Gilliam, Jr., District Judge, Presiding
Argued and Submitted February 8, 2023
San Francisco, California
Before: McKEOWN, BYBEE, and BUMATAY, Circuit Judges.
Ning Xianhua appeals the district court’s order dismissing his action
asserting claims under the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350, Torture
Victim Protection Act (“TVPA”), id. note § 2(a), and California’s unfair
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
APR 13 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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competition law (“UCL”), Bus. & Prof. Code § 17200 et seq. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo the district court’s dismissal for
failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Curry v.
Yelp, Inc., 875 F.3d 1219, 1224 (9th Cir. 2017). We affirm the district court’s
dismissal, but on alternative grounds.
While Ning’s complaint barely meets the pleading standard, see Fed. R. Civ.
P. 8, he nevertheless fails to state a claim under any of the statutes against the
individual or corporate defendants-appellees.
Ning fails to state a claim under the ATS because he did not allege a
permissible extraterritorial application of the Statute. Kiobel v. Royal Dutch
Petroleum Co., 569 U.S. 108, 117 (2013). Even assuming aiding-and-abetting
conduct is relevant to the extraterritoriality analysis, Ning’s complaint fails to
plausibly allege relevant conduct within the United States beyond “general
corporate activity.” Nestlé USA, Inc. v. Doe, 141 S. Ct. 1931, 1936–37 (2021).
Ning fails to state a claim under the TVPA because he did not sufficiently
allege state action. His complaint fails to plausibly allege that Terry Semel and
Jerry Yang acted under actual or apparent authority, or color of law, of the
People’s Republic of China. See 28 U.S.C. § 1350 note § 2(a); Mohamad v.
Palestinian Auth., 566 U.S. 449, 453–56, 461 (2012) (holding that only individuals
may be liable under the TVPA).

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Finally, Ning fails to state a claim under the UCL because he impermissibly
seeks nonrestitutionary disgorgement of profits. Zhang v. Superior Ct., 304 P.3d
163, 167–68 (Cal. 2013) (“Restitution under [the UCL] is confined to restoration
of any interest in ‘money or property, real or personal, which may have been
acquired by means of such unfair competition.’”); Korea Supply Co. v. Lockheed
Martin Corp., 63 P.3d 937, 943 (Cal. 2003) (“[D]isgorgement of money obtained
through an unfair business practice is an available remedy . . . only to the extent
that it constitutes restitution.”).
Because Ning fails to state a claim under the ATS, TVPA, or California’s
UCL, we AFFIRM the district court’s order dismissing the action.

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