Judge: Bruce G. Iwasaki, Case: 23STCV30742, Date: 2024-04-23 Tentative Ruling

Case Number: 23STCV30742    Hearing Date: April 23, 2024    Dept: 58

Judge Bruce G. Iwasaki

Department 58

Hearing Date:             April 23, 2024

Case Name:                Casillas v. Transitional Optical, Inc.  

Case No.:                    233STCV30742

Motion:                       Demurrer

Moving Party:             Defendant Transitions Optical, Inc.

Opposing Party:          Plaintiff Miltita Casillas

             On December 15, 2023, Miltita Casillas (Plaintiff) filed a Complaint against Transitions Optical, Inc. (Defendant) alleging a single claim for violation of the California Invasion of Privacy Act (CIPA) under California Penal Code section 638.51. The Complaint alleges that Defendant’s website at: https://www.transitions.com (Website) secretly deployed tracking software that relies upon the user’s unique Internet Protocol address (IP address) on the user’s computerized device to monitor visitors, including Plaintiff, to track Plaintiff’s browsing habits. (Compl., 2:2-4, ¶¶ 9-11, 19, 23.)

Defendant now demurs to this cause of action in the Complaint. Plaintiff opposes the demurrer.

The demurrer is sustained.

Defendant’s request for judicial notice of Exhibits A-C are denied. (Evid. Code, § 452.) Plaintiff’s request for judicial notice of Exhibits 1-2 are granted and the request for judicial notice of Exhibits 3-4 are denied. (Evid. Code, § 452.)

Demurrer

            A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “ ‘ “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . ..” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) 

Analysis

            Defendant demurs to the violation of the CIPA under California Penal Code section 638.51 on the grounds that Plaintiff has not stated a claim.

            Penal Code section 631, subdivision (a), provides that a person who does any of the following has acted in violation of California’s Invasion of Privacy Act (CIPA):

“Any person who, 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 telephone communication system,

or

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

who uses, or attempts to use, in any manner, or for any purpose, or to communicate in any way, any information so obtained,

or

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.” (Pen. Code, § 631, subd. (a) [line breaks added].) 

            The statute “prescribes ... penalties for three distinct and mutually independent patterns of conduct: intentional wiretapping, willfully attempting to learn the contents or meaning of a communication in transit over a wire, and attempting to use or communicate information obtained as a result of engaging in either of the two previous activities.” (Tavernetti v. Super. Ct. (1978) 22 Cal. 3d 187, 192.)

            More specifically, the first clause creates a violation if a person “by means of any machine, instrument, or contrivance, or in any other manner, intentionally taps or makes any unauthorized connection with any telegraph or telephone wire, line, cable, or instrument ....” (Swarts v. Home Depot, Inc. (N.D. Cal., Aug. 30, 2023, No. 23-CV-0995-JST) 2023 WL 5615453, at *5.) The second clause creates a violation where a person “willfully and without 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.” (Id.) The third clause creates a violation where a person “uses, or attempts to use, in any manner, or for any purpose, or to communicate in any way, any information so obtained” as outlined in the first two clauses. (Id.)

Finally, in addition to these three clauses, section 631 also contains an aiding and abetting provision, which imposes liability on anyone 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.” (Id.)

Specifically relevant to this Complaint, the CIPA extends civil liability to the installation of a “pen register” or a “trap and trace device” without a court order. (Pen. Code, § 638.51.)

The statute defines a “pen register” as “a device or process that records or decodes dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted, but not the contents of a communication.” (Pen. Code, § 638.50, subd. (b).) CIPA likewise defines “trap and trace” software broadly to include “a device or process that captures the incoming electronic or other impulses that identify the originating number or other dialing, routing, addressing, or signaling information reasonably likely to identify the source of a wire or electronic communication, but not the contents of a communication.” (Pen. Code, 638.50, subd. (c).)

Here, Defendant contends that “the Complaint is hopelessly vague as to Defendant Transitions Optical’s specific conduct, specific software at issue, Plaintiff’s interactions with the website, or any information of Plaintiff’s that was purportedly recorded, decoded or captured.” (Compl., ¶ 6.)

The argument is well taken. The Complaint, at most, alleges in a conclusory manner that “Defendant secretly accessed Plaintiff’s device and installed ‘pen register’ and ‘trap and trace’ tracking software.” (Compl., 2:5-7.) That is, the Complaint essentially repeats the generic statutory language by alleging “Defendant knowingly and intentionally deployed a software device and process to (1) decode and record the routing, addressing, and signaling information transmitted by Plaintiff’s electronic device communication; and (2) capture the incoming electronic or other impulses that identify the originating number or other dialing, routing, addressing, or signaling information reasonably likely to identify the source of a wire or electronic communication, Defendant did so as part of its identity resolution efforts.” (Compl., ¶ 19.)

The remaining portions of the Complaint merely theorize “[o]ne of the means” of how a theoretical website owner could collect certain information through the use of software that qualifies as a “pen register” or a “trap and trace device.” (See e.g., Compl., ¶¶ 14-16.)  Generally, the Complaint makes inappropriate and conclusory legal arguments, but alleges few ultimate facts.  It does not contain a “statement of the facts constituting the cause of action in ordinary and concise language.”  (Code Civ. Proc., § 425.10.)

Plaintiff’s reliance on Greenley v. Kochava, Inc. (S.D. Cal., July 27, 2023, No. 22-cv-01327-BAS-AHG) 2023 WL 4833466; 2023 U.S. Dist. LEXIS 130552, is unpersuasive.  In that case the defendant was a data broker that provided software to application developers in return for which it surreptitiously intercepted location data from application users. The alleged conduct and relationship to the plaintiff was very different from the allegations here.

The demurrer is sustained on this ground.

Defendant also argues that it is “exempt” as an “electronic or wire communication service” provider for software used to “to operate, maintain, and test a wire or electronic communication service.” (Pen. Code, § 638.51, subd. (b)(1).)

This argument is not affirmatively alleged on the face of the pleadings. The Complaint merely alleges that Defendant is a “fashion eyewear company that markets eyewear via its website….” (Compl. ¶ 5.) While evidence may show that Defendant provides electronic services to those accessing its website, the Court cannot determine that Defendant is an “electronic communication service provider” on the pleadings for demurrer purposes.

Defendant also argues that the Complaint has failed to allege that Plaintiff suffered an injury. However, Penal Code section 637.2, subdivision (c), provides that “[i]t is not a necessary prerequisite to an action pursuant to this section that the plaintiff has suffered, or be threatened with, actual damages.” This provision indicates that “actual damages” are unnecessary to constitute an “injured” party under this statutory scheme such that a party could seek only statutory damages.

 To the extent that Defendant is arguing that, to be an injured party, Plaintiff must demonstrate her private information was collected, the Court agrees. (See Limon v. Circle K Stores Inc. (2022) 84 Cal.App.5th 671, 703 [explaining that a “statutory damages provision is intended to compensate a plaintiff for injury. It is designed to provide redress where damages are ‘difficult or impossible to quantify or prove.’”].) However, to the extent that Defendant is arguing that there must be actual damages, the Court disagrees.

Lastly, Defendant argues that Plaintiff cannot establish that she did not consent to the collection of certain data. Specifically, Defendant argues that “Not only does Transitions Optical’s website provide a clearly labeled Privacy Policy that specifically addresses its privacy practices, it also provides users with an explicit pop-up banner that discloses its use of cookies as soon as visitors reach the site. Further still, this pop-up banner provides users with clear instructions and tools to opt-out of Transitions Optical’s use of certain website cookies.” (Opp. 14-15 [Def.’s RJN A-B.) This argument, however, is outside the scope of the pleadings and based on facts not subject to judicial notice. Thus, this argument does not serve as an additional  basis for the demurrer. Further, this defense applies only to a “provider of electronic or wire communication service,” which (for the reasons discussed above) Defendant cannot show based on the pleadings.

Conclusion

            The demurrer is sustained. Plaintiff shall have leave to amend. The amended pleading shall be filed and served on or before May 23, 2024.