Judge: David S. Cunningham, Case: 22STCV03531, Date: 2024-08-23 Tentative Ruling

Case Number: 22STCV03531    Hearing Date: August 23, 2024    Dept: 11

22STCV03531 (Weeks)

Tentative Ruling Re: Motion for Protective Order

Date:                           8/23/24

Time:                          9:00 am

Moving Party:           Interactive Life Forms, LLC (“Defendant” or “ILF” or “Interactive”)

Opposing Party:        Brinan Weeks (“Plaintiff”)

Department:              11

Judge:                         David S. Cunningham III

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TENTATIVE RULING

Defendant’s motion for protective order is denied.

BACKGROUND

ILF is a company that makes and sells sex toys.  (See First Amended Complaint (“FAC”), ¶ 1.)

Plaintiff resides in Los Angeles County.  (See FAC, ¶ 11.)

On 9/21/21, Plaintiff purchased a product called Stamina Training Unit from ILF’s website.  (See Weeks Decl., ¶ 2.)

Plaintiff alleges that ILF’s representations and advertisements about the product were untrue.  He asserts causes of action for negligent misrepresentation, violation of the Consumer Legal Remedies Act, violation of the False Advertising Law, breach of express and implied warranties, and violation of the Unfair Competition law, and he seeks to represent a class of similar California customers.  (See, e.g., FAC, ¶¶ 19-72.)

(7/26/22 Tentative Ruling Re: Motion to Compel Arbitration, p. 1, footnote omitted.)

On July 26, 2022, the Court denied ILF’s motion to compel arbitration.

Here, ILF seeks a protective order requiring the parties to utilize an opt-in procedure to obtain the putative members’ contact information.

DISCUSSION

Defendant contends an opt-in procedure is necessary to protect the putative members’ privacy rights, especially “given the nature of the product at issue[.]”  (Motion, p. 4.)  Defendant states that an opt-in procedure would “prevent[] an involuntary ‘waiver’ of privacy rights while ensuring that only those ILF customers who affirmatively assent to the disclosure will have their private information turned over to Plaintiff’s counsel.”  (Id. at p. 5; see also id. at p. 4 [asserting that “customers who do not affirmatively object to the disclosure of their private information” could be “found to have ‘waived’ their privacy rights even if the class notice email was (a) deleted before it was opened (or otherwise never opened), (b) directed to their spam trap (and therefore never seen); (c) ‘opened’ but not read; (d) opened but mistaken for spam or (e) not understood as requiring the recipient to take an affirmative step to prevent waiver of their privacy rights”]; see also Reply, pp. 4-5.)

Plaintiff disagrees.  He contends Defendant fails to cite a published decision “in which the court ordered the use of an opt-in notice.”  (Opposition, p. 1.)  He claims “California courts have consistently ruled that an opt-out notice should be used in consumer class action cases, even when those cases involve particularly sensitive information.”  (Ibid.; see also id. at pp. 2-3 [discussing Los Angeles Gay Lesbian Center v. Superior Court (2011) 194 Cal.App.4^th 288 (“LAGLC”), waiver, and the purported likelihood that opt-out notices would be missed, deleted, or ignored].)

This is a precertification motion.  Under California law, “[t]he named plaintiff may seek precertification discovery to identify and obtain contact information (e.g., addresses, telephone numbers) for members of the putative class (e.g., other customers with similar claims against defendant).”  (Edmon & Karnow, Cal. Practice Guide: Civ. Procedure Before Trial (The Rutter Group June 2024 Update) ¶ 14:135.3, emphasis in original.)  “Such information is generally discoverable, subject to privacy protections for the putative class members[.]” (Ibid. [citing Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4^th 360 (“Pioneer Electronics”) and Belaire-West Landscape, Inc. v. Superior Court (2007) 149 Cal.App.4^th 554 (“Belaire-West”)], emphasis in original.)

“To protect the class members’ privacy, they must be given the right to object in advance to (‘opt out’ of) disclosure of their identities and contact information.”  (Id. at ¶ 14:135.6.)  “A written notice approved by the court is required for this purpose.”  (Ibid. [citing Pioneer Electronics and Williams v. Superior Court (2017) 3 Cal.5^th 531].) 

Nevertheless, “[p]recertification class discovery to obtain names and addresses of potential class members is not a matter of right.”  (Id. at ¶ 14:135.8 [citing Starbucks Corp. v. Superior Court (2011) 194 Cal.App.4^th 820].)  “In deciding whether to order precertification discovery of potential class members’ identities, a trial court must ‘expressly identify any potential abuses of the class action procedure that may be created if the discovery is permitted, and weigh the danger of such abuses against the rights of the parties under the circumstances.’”  (Ibid. [citing Parris v. Superior Court (2003) 109 Cal.App.4^th 285 and Pioneer Electronics].)

Which brings the Court to the case law.  In Pioneer Electronics, in the precertification context, the California Supreme Court approved an opt-out notice in a class action involving consumers of defective DVD players and held that the trial court had not abused discretion by using the opt-out notice instead of an opt-in notice.  In Belaire-West, also in the precertification context, the Second District Court of Appeal upheld an opt-out notice in a wage-and-hour class action.  In LAGLC, in the post-certification context, the Second District authorized an opt-out notice and found an opt-in notice unnecessary in a class action brought by syphilis patients. 

Considering these rules and cases, the Court agrees with Plaintiff because:

* Defendant fails to cite a published opinion requiring an opt-in procedure.[1]

* “Contact information regarding the identity of potential class members is generally discoverable, so that the lead plaintiff may learn the names of other persons who might assist in prosecuting the case.”  (Pioneer Electronics, supra, 40 Cal.4^th at 373.)

* “Such disclosure involves no revelation of personal or business secrets, intimate activities, or similar private information, and threatens no undue intrusion into one’s personal life, such as mass-marketing efforts or unsolicited sales pitches.”  (Ibid.) 

* Plaintiff’s action is a product-defect and false-advertising case; thus, the putative members “could be expected to want their [contact] information revealed to a class action plaintiff who might obtain relief for the defective” product and false advertising.  (Belaire-West, supra, 149 Cal.App.4^th at 561 [analogizing Pioneer Electronics].)

* “Disclosure of the contact information with an opt-out notice would not appear to unduly compromise either informational privacy or autonomy privacy in light of the opportunity to object to the disclosure,” and “there [is] no evidence of any actual or threatened misuse of the information.”  (Id. at 562.)

* In Pioneer Electronics, “[t]he Supreme Court dismissed the concern that the opt-out notices might never be delivered and read, observing that reasonable steps to ensure delivery, not absolute certainty of receipt, was required.”  (Id. at 560 [summarizing Pioneer Electronics]; see also LAGLC, supra, 194 Cal.App.4^th at 308 [noting that, “even though the opt-out letters might not be received or read, the proposed method of notice was sufficient”].)

* “The [contact] information at issue in” Plaintiff’s action “is no more sensitive than the personal medical information at issue in” LAGLC.  (Opposition, p. 2.)

* “Even where sensitive medical and privacy interests are implicated by the nature of the action, an ‘opt-in’ order is improper, but special procedures may be devised for the ‘opt-out’ notice; e.g., the court may appoint a third party to administer the notice[.]”  (Edmon & Karnow, supra, at ¶ 14:134.5 [citing LAGLC].)

Accordingly, Defendant’s motion is denied, except, at the hearing, counsel should be prepared to address whether special protections should be added to the opt-out procedure.