Judge: Daniel S. Murphy, Case: 24STCV18332, Date: 2025-02-10 Tentative Ruling

Case Number: 24STCV18332    Hearing Date: February 10, 2025    Dept: 32

BACKGROUND

            On July 23, 2024, Plaintiff Monica Sanchez filed this action against Defendant Energy Dialogues, Inc., alleging a violation of the California Invasion of Privacy Act (CIPA). Plaintiff filed the operative First Amended Complaint on November 19, 2024.

            The FAC alleges that when Plaintiff visited Defendant’s website, the website illegally installed a pen register and trap and trace device onto Plaintiff’s device, which was used to collect Plaintiff’s IP address.

            On December 24, 2024, Defendant filed the instant demurrer to the FAC. Plaintiff filed her opposition on January 28, 2025. Defendant filed its reply on February 3, 2025.

LEGAL STANDARD

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (Code Civ. Proc., § 430.30, subd. (a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Ibid.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, supra, 147 Cal.App.4th at 747.)

Any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part of that pleading. (Code Civ. Proc., § 435, subd. (b).) The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike (1) any irrelevant, false, or improper matter inserted in any pleading and (2) all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Id., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id., § 437.)

MEET AND CONFER

Before filing a demurrer or a motion to strike, the demurring or moving party is required to meet and confer with the party who filed the pleading demurred to or the pleading that is subject to the motion to strike for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code Civ. Proc., §§ 430.41, 435.5.) The Court finds that Defendant has satisfied the meet and confer requirement. (See Baker Decl.)

DISCUSSION

I. Statutory Framework

            “‘Pen register’ means 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(b).) “‘Trap and trace device’ means 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.” (Id., § 638.50(c).)

            “Except as provided in subdivision (b), a person may not install or use a pen register or a trap and trace device without first obtaining a court order pursuant to Section 638.52 or 638.53.” (Pen. Code, § 638.51(a).) “Any person who has been injured by a violation of this chapter may bring an action against the person who committed the violation.” (Pen. Code, § 637.2(a).)

II. Plaintiff’s Allegations

            Plaintiff identifies herself as a “consumer privacy advocate who works as a ‘tester’ to ensure that companies abide by the privacy obligations imposed by California law.” (FAC ¶ 4.) Plaintiff alleges that when she visited Defendant’s website, the website installed “beacons” or “spyware” on her internet browser which collected information identifying her “routing, addressing, or signaling information.” (Id., ¶¶ 42, 99.) Plaintiff alleges that Defendant did not obtain her consent or a court order to collect this information. (Id., ¶ 100.) As a result, Plaintiff alleges she has “suffered an intangible injury to Plaintiff’s dignity caused by the invasion of Plaintiff’s privacy.” (Id., ¶ 113.) “Plaintiff suffered the loss of the right to control information concerning Plaintiff.” (Ibid.)  

III. Standing

            “As a general principle, standing to invoke the judicial process requires an actual justiciable controversy as to which the complainant has a real interest in the ultimate adjudication because he or she has either suffered or is about to suffer an injury of sufficient magnitude reasonably to assure that all of the relevant facts and issues will be adequately presented to the adjudicator.” (Holmes v. Cal. Nat. Guard (2001) 90 Cal.App.4th 297, 314-15.) To have standing, a plaintiff must possess “some special interest to be served or some particular right to be preserved or protected over and above the interest held in common with the public at large.” (Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 362.) The harm must be “(a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” (Ibid.)

“[R]eputational harms, disclosure of private information, and intrusion upon seclusion” are “harms traditionally recognized as providing a basis for lawsuits in American courts.” (TransUnion LLC v. Ramirez (2021) 594 U.S. 413, 425.) “[V]iolations of the right to privacy have long been actionable at common law.” (Davis v. Facebook, Inc. (In re Facebook Inc. Internet Tracking Litig.) (9th Cir. 2020) 956 F.3d 589, 598.) “A right to privacy ‘encompass[es] the individual’s control of information concerning his or her person.’” (Ibid.) 

Defendant contends that Plaintiff has not alleged an injury-in-fact. However, the allegations, when read as a whole and interpreted liberally, support a reasonable inference that Plaintiff had her information tracked without her consent, thus resulting in harm to her personal autonomy. (See FAC ¶¶ 100, 113.) Thus, Plaintiff has adequately pled her standing.

IV. Pen Register or Trap and Trace Device

            Defendant argues that Plaintiff has failed to allege the use of a “pen register” or “trap and trace device” as defined under CIPA. Specifically, Defendant contends that IP-tracking does not constitute capturing “dialing, routing, addressing, or signaling information.” (See Pen. Code, § 638.50(b), (c).) Defendant also argues that it is exempt as a “provider of electronic or wire communication service” that used the alleged software “to operate, maintain, and test a wire or electronic communication service” or for “billing . . . or other similar purposes in the ordinary course of its business.” (See id., §§ 638.50(b), 638.51(b)(1).)

However, these are factual issues. For pleading purposes, Plaintiff has alleged that Defendant’s website installed spyware on her browser which collected her incoming and outgoing “routing, addressing, or signaling information.” (FAC ¶¶ 42, 99.) These allegations must be assumed true. There is nothing on the face of the complaint admitting that Defendant is a “provider of electronic or wire communication service,” nor are there any allegations establishing that Defendant merely used the tracking software for maintenance and billing purposes. These are extraneous facts not considerable on a demurrer.  

            Defendant cites to federal cases holding that merely collecting IP addresses does not constitute an invasion of privacy because the information is routinely collected for basic website functionality. However, the federal pleading standard is stricter and requires a plaintiff to plead specific facts demonstrating that a claim is plausible. (See, e.g., Khalik v. United Air Lines (10th Cir. 2012) 671 F.3d 1188, 1190-94.) California employs a more liberal pleading standard which leaves such details for discovery. (See Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 608.) Thus, for pleading purposes, Plaintiff has sufficiently alleged that Defendant employed a pen register or trap and trace device.

V. Consent

“A provider of electronic or wire communication service may use a pen register or a trap and trace device . . . [i]f the consent of the user of that service has been obtained.” (Pen. Code, § 638.51(b)(5).) Defendant argues that Plaintiff consented to the use of the alleged pen register or trap and trace device because she is a tester who voluntarily visited the website and also admitted that Defendant provided notice through a “privacy policy or cookie banner.” (See FAC ¶¶ 4, 63.)

However, neither of these allegations establish Plaintiff’s consent as a matter of law. Plaintiff’s voluntary visit to the website does not establish as a matter of law that she consented to the specific data collection at issue in this case. Plaintiff alleges that her data was harvested and shared with third parties “immediately upon webpage loading, preceding any opportunity . . . to consent to or decline the Website’s privacy policy or cookie banner.” (FAC ¶ 63.) Thus, Plaintiff did not admit to providing consent. To the contrary, Plaintiff explicitly alleges that she did not consent. (Id., ¶ 59.) This is an allegation of ultimate fact which must be taken as true.

VI. Punitive Damages[1]

            To recover punitive damages, a plaintiff must “plead and prove a common law tort.” (De Anza Santa Cruz Mobile Estates Homeowners Assn. v. De Anza Santa Cruz Mobile Estates (2001) 94 Cal.App.4th 890, 912.) “A plaintiff who relies solely on a cause of action for a statutory violation may be deemed to have waived punitive damages” because to “recover both punitive damages and statutory penalties . . . would constitute a prohibited double penalty for the same act.” (Id. at pp. 912-13.)

            Plaintiff’s complaint alleges a single cause of action for a statutory violation and contains no claims based on tort. CIPA provides for statutory penalties or treble damages. (Pen. Code, § 637.2(a).) Thus, Plaintiff is not entitled to punitive damages.

VII. Attorney’s Fees

“Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties . . . .” (Code Civ. Proc., § 1021.) Thus, “[a]ttorney fees are not recoverable unless a fee award is expressly authorized by either statute or the parties’ contract.” (Ilshin Investment Co., Ltd. v. Buena Vista Home Entertainment, Inc. (2011) 195 Cal.App.4th 612, 627.)

Here, the FAC alleges neither a contractual nor statutory basis for attorney’s fees. Plaintiff argues that she is entitled to attorney’s fees under Code of Civil Procedure section 1021.5, which allows an award of fees to the successful party “in any action which has resulted in the enforcement of an important right affecting the public interest.” However, “section 1021.5 was not intended to impose fees on an individual seeking a judgment that determines only his or her private rights.” (Serrano v. Stefan Merli Plastering Co., Inc. (2011) 52 Cal.4th 1018, 1026.) This is a private dispute between Plaintiff and Defendant which does not implicate the rights of the public at large. Therefore, Plaintiff is not entitled to attorney’s fees.

CONCLUSION

            Defendant’s demurrer to the first cause of action is OVERRULED. Defendant’s motion to strike punitive damages and attorney’s fees is GRANTED without leave to amend.