Judge Blaine K. Bowman, Case Number: 37-2022-00046821-CU-CR-CTL, Date: 2024-05-03 Tentative Ruling

Judge: Blaine K. Bowman, Case: 37-2022-00046821-CU-CR-CTL, Date: 2024-05-03 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

HALL OF JUSTICE

TENTATIVE RULINGS - May 02, 2024

05/03/2024 08:30:00 AM C-74 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Blaine K. Bowman

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited Civil Rights Motion Hearing (Civil) 37-2022-00046821-CU-CR-CTL LICEA VS SUNROAD AUTO HOLDING CORP [E-FILE] CAUSAL DOCUMENT/DATE FILED:

The court addresses the evidentiary issues. Defendant Sunroad BCV Auto, Inc.'s request for judicial notice is GRANTED. Plaintiff's request for judicial notice is GRANTED.

The court then rules as follows. Defendant Sunroad BCV Auto, Inc.'s motion for judgment on the pleadings as to Plaintiff's First Amended Class Action Complaint is GRANTED WITHOUT LEAVE TO AMEND as to the Violations of the California Invasion of Privacy Act – Penal Code § 631(a) and California Unauthorized Access to Computer Data Act – Penal Code § 502 causes of action and OVERRULED as to the California Invasion of Privacy and Intrusion Upon Seclusion causes of action.

Violations of the California Invasion of Privacy Act – Penal Code § 631(a) Penal Code § 631(a), which provides for civil liability in addition to criminal liability, states as follows: (a) Any person who, [1] by means of any machine, instrument, or contrivance, or in any other manner, intentionally taps, or makes any unauthorized connection, whether physically, electrically, acoustically, inductively, or otherwise, with any telegraph or telephone wire, line, cable, or instrument, including the wire, line, cable, or instrument of any internal telephonic communication system, or [2] who willfully and without the consent of all parties to the communication, or in any unauthorized manner, reads, or attempts to read, or to learn the contents or meaning of any message, report, or communication while the same is in transit or passing over any wire, line, or cable, or is being sent from, or received at any place within this state; or [3] who uses, or attempts to use, in any manner, or for any purpose, or to communicate in any way, any information so obtained, or [4] who aids, agrees with, employs, or conspires with any person or persons to unlawfully do, or permit, or cause to be done any of the acts or things mentioned above in this section, is punishable by . . . . .

As In re Google Assistant Privacy Litigation (N.D. Cal. 2020) 457 F.Supp.3d 797 explains, [t]he California Supreme Court has clarified that this lengthy provision contains three operative clauses protecting against 'three distinct and mutually independent patterns of conduct': (i) 'intentional wiretapping,' (ii) 'willfully attempting to learn the contents or meaning of a communication in transit over a wire,' and (iii) 'attempting to use or communicate information obtained as a result of engaging in either of the two previous activities.' Tavernetti v. Superior Court, 22 Cal. 3d 187, 192, 148 Cal.Rptr. 883, 583 P.2d 737 (1978); accord In re Google Inc., No. 13-MD-02430-LHK, 2013 WL 5423918, at *15 (N.D. Cal. Sept. 26, 2013).

Calendar No.: Event ID: TENTATIVE RULINGS

3099894 9 CASE NUMBER: CASE TITLE: LICEA VS SUNROAD AUTO HOLDING CORP [E-FILE] 37-2022-00046821-CU-CR-CTL In re Google Assistant Privacy Litigation, 457 F.Supp.3d at 825. The fourth clause (identified as '[4]' in the first quote) is the aiding and abetting clause.

Sunroad's initial arguments are as to the first clause of Penal Code § 631(a). Plaintiff does not address the first clause in opposition and instead argues that the FAC 'plausibly alleges that the chat provider has violated the second and third clauses of section 631(a).' [Oppo., p.10, l. 16.] The court finds the FAC fails to allege facts sufficient to establish a violation of the first clause of § 631(a) by Sunroad.

As to the second clause, Sunroad relies on Warden v. Kahn (1979) 99 Cal.App.3d 805 which recognizes authority holding that the second clause of § 631(a) applies 'only to eavesdropping by a third party and not to recording by a participant to a conversation.' Warden, 99 Cal.App.3d at 811. Warden cites to Rogers v. Ulrich (1975) 52 Cal.App.3d 894 in which the court refers to the second clause of § 631(a) (although identifying the clause as '(3)').

The question is whether the statute [§ 631(a)] covers the recording of a conversation made by a participant rather than by a third party. The statute prohibits three ways of obtaining information being sent over a telephone or telegraph line: (1) tapping the line, (2) making an unauthorized connection with the line, and (3) reading, attempting to read, or learning the contents or meaning of a message while the message is in transit. As to the third method, a recording made by a participant does not intercept the message while it is in transit; the recording rather transcribes the message as it is being received. As to the first two methods, the key phrases, 'taps' and 'makes any unauthorized connection,' are vague and nowhere defined. However, Penal Code section 630 is a declaration of legislative finding and intent; it speaks of preventing eavesdropping and other invasions of privacy, thus suggesting that participant recording was not meant to be included. 'Eavesdropping' is the problem the Legislature meant to deal with; 'eavesdrop' is defined in Webster's Seventh New Collegiate Dictionary (1972) as 'to listen secretly to what is said in private.' It is never a secret to one party to a conversation that the other party is listening to the conversation; only a third party can listen secretly to a private conversation. The trial court was right in determining that appellant's evidence did not make out a case under the statute.

Rogers, 52 Cal.App.3d at 898–899.

As pled, Sunroad was a party to the webchats [FAC ¶ 21]. As in Licea v. American Eagle Outfitters, Inc.

(C.D. Cal. 2023) 659 F.Supp.3d 1072, '[i]t is clear that Defendant was a party to the purported conversation with Plaintiff and, as such, cannot be held liable under the second clause of section 631(a).' Licea, 659 F.Supp.3d at 1082. For these same reasons, the court finds the FAC fails to allege facts sufficient to establish a violation of the second clause of § 631(a) by Sunroad.

In opposition Plaintiff argues: 'The First Amended Complaint ('FAC') alleges that Defendant employed a third-party vendor named 'Gubagoo' as its chat provider for its website: https://www.bmwofelcajon.com (the 'Website'). (FAC ¶ 12.)' Such allegations are not contained within ¶ 12 of the FAC on file in this court. Plaintiff also cites to allegations of how Gubagoo allegedly uses data from Sunroad website users' interactions with the webchat. However, Plaintiff fails to cite to any allegations that Gubagoo uses data derived from the webchats to Gugaboo's own benefit. Absent such allegations, there is no basis for a finding that Sunroad is liable based on the acts of Gugaboo. As Martin v. Sephora USA, Inc. (E.D. Cal. 2023) 2023 WL 2717636 recognizes, caselaw supports the contention that a third-party vendor that is deemed to merely facilitate customer chats as an extension of the company does not trigger derivative liability under § 631(a). See id. [Graham v. Noom, Inc. (N.D. Cal. 2021) 533 F.Supp.3d 823] at 832–33 (third party vendor that provided software service that captured defendant's data, hosted data on vendor servers, and allowed defendant to analyze its own data was deemed an extension of defendant, and not a third party eavesdropper under § 631(a)) Martin, 2023 WL 2717636 at *13.

Calendar No.: Event ID: TENTATIVE RULINGS

3099894 9 CASE NUMBER: CASE TITLE: LICEA VS SUNROAD AUTO HOLDING CORP [E-FILE] 37-2022-00046821-CU-CR-CTL Plaintiff's arguments as to the third clause and fourth clauses of § 631(a) are dependent on Plaintiff having established the allegations of the FAC as sufficient to support a violation of the second clause of § 631(a). As such, for the same reasons set forth above, the court finds the FAC fails to allege facts sufficient to establish a violation of the third clause and fourth clauses of § 631(a) by Sunroad.

Plaintiff was previously allowed leave to amend as to this same cause of action. And, although Plaintiff again seeks leave to amend, Plaintiff fails to proffer facts sufficient to cure these pleading deficiencies.

Therefore, the court finds Plaintiff fails to demonstrate a reasonable probability the FAC can be amended to plead a basis for liability against Sunroad under this cause of action. Accordingly, Sunroad's motion for judgment on the pleadings is GRANTED WITHOUT LEAVE TO AMEND as to this cause of action. Doe v. United States Youth Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118, 1143 citing Titus v. Canyon Lake Property Owners Assn. (2004) 118 Cal.App.4th 906, 917. See also, Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Ruinello v. Murray (1951) 36 Cal.2d 687, 690.

California Unauthorized Access to Computer Data Act – Penal Code § 502 As pled the FAC alleges violation of Penal Code § 502(c)(1) and (2). Penal Code § 502 provides in relevant part: . . . .

(c) . . . . any person who commits any of the following acts is guilty of a public offense: (1) Knowingly accesses and without permission alters, damages, deletes, destroys, or otherwise uses any data, computer, computer system, or computer network in order to either (A) devise or execute any scheme or artifice to defraud, deceive, or extort, or (B) wrongfully control or obtain money, property, or data.

(2) Knowingly accesses and without permission takes, copies, or makes use of any data from a computer, computer system, or computer network, or takes or copies any supporting documentation, whether existing or residing internal or external to a computer, computer system, or computer network.

. . . .

(e)(1) In addition to any other civil remedy available, the owner or lessee of the computer, computer system, computer network, computer program, or data who suffers damage or loss by reason of a violation of any of the provisions of subdivision (c) may bring a civil action against the violator for compensatory damages and injunctive relief or other equitable relief. Compensatory damages shall include any expenditure reasonably and necessarily incurred by the owner or lessee to verify that a computer system, computer network, computer program, or data was or was not altered, damaged, or deleted by the access. . . . .

By its express terms, subsection (e)(1) allows for relief only to those owners/lessees who have suffered damage or loss by reason of a violation of subdivision (c). The court finds the FAC fails to allege facts sufficient to support a finding that Plaintiff suffered damage or loss by reason of a violation of either subsection (c)(1) or (c)(2). The court is not persuaded by Plaintiff's reliance on the 'identify resolution' allegations of ¶¶ 15-17 or by allegations that Sunroad obtained Plaintiff's IP address [FAC ¶ 21]. None of these allegations are sufficient to support a finding that Plaintiff suffered any cognizable damage or loss. Absent such allegations, this cause of action fails.

Although Plaintiff seeks leave to amend, Plaintiff fails to proffer facts sufficient to cure this pleading deficiency. Therefore, the court finds Plaintiff fails to demonstrate a reasonable probability the FAC can be amended to plead a basis for liability against Sunroad under this cause of action. Accordingly, Sunroad's motion for judgment on the pleadings is GRANTED WITHOUT LEAVE TO AMEND as to this Calendar No.: Event ID: TENTATIVE RULINGS

3099894 9 CASE NUMBER: CASE TITLE: LICEA VS SUNROAD AUTO HOLDING CORP [E-FILE] 37-2022-00046821-CU-CR-CTL cause of action. Doe v. United States Youth Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118, 1143 citing Titus v. Canyon Lake Property Owners Assn. (2004) 118 Cal.App.4th 906, 917. See also, Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Ruinello v. Murray (1951) 36 Cal.2d 687, 690.

California Invasion of Privacy Intrusion Upon Seclusion The court addresses these causes of action together as the elements are similar [see, Hernandez v. Hillsides, Inc. (2009) 47 Cal.4th 272, 286-287] and the parties raise similar arguments as to both causes of action. Based on the authorities Plaintiff relies on, the court finds the allegations of the FAC sufficient to support a finding that Plaintiff possesses a legally protected privacy interest in Plaintiff's IP address.

The court finds the allegations of ¶ 69 sufficient to establish the requisite intent for the intrusion cause of action. The court also finds the allegations sufficient to support a finding that Plaintiff had a reasonable expectation of privacy in Plaintiff's IP address, that Sunroad accessing Plaintiff's IP address was sufficiently serious, and that the alleged intrusion occurred in a manner highly offensive to a reasonable person. The issues of whether Plaintiff's expectation was reasonable, whether the alleged invasion was sufficiently serious, and whether the alleged intrusion was highly offensive to a reasonable person are factual issues not properly resolved on demurrer.

Addressing a procedural issue, the font size used in Sunroad's reply is in violation of California Rules of Court, rule 2.104 ['all papers must be prepared using a font size not smaller than 12 points']. Use of a smaller font also renders Sunroad's reply in violation of the page requirements of CRC 3.1113(d).

Should Sunroad continue to file papers in violation of court rules, the court will treat such papers as late-filed. CRC 3.1113(g).

If this tentative ruling is confirmed the Minute Order will be the final order of the court and the parties shall not submit any further order on this motion.

Unless the ruling(s) above indicate that an appearance is necessary, parties who wish to submit, who are satisfied with the above tentative ruling(s), and/or who do not otherwise wish to argue the motion(s) are encouraged to give notice to the Court and each other of their intention not to appear.

Calendar No.: Event ID: TENTATIVE RULINGS

3099894 9