Judge: Elaine Lu, Case: 23STCV10382, Date: 2025-05-15 Tentative Ruling

Case Number: 23STCV10382    Hearing Date: May 15, 2025    Dept: 9

Superior Court of California

County of Los Angeles

Spring Street Courthouse, Department 9

Procedural Background

This is a putative consumer class action. Plaintiff Anne Heiting (“Plaintiff”) alleges that Defendant HarperCollins Publishers LLC (“Defendant”) operates an online platform that showcases and sells books, author information, and events.  Plaintiff alleges users of Defendant’s website can communicate with a customer service representative using an “online chatbox.”  Plaintiff alleges third party Tawk.to, Inc. (“Tawk.to”) recorded and stored these text communications with customers on Defendant’s website in violation of the California Invasion of Privacy Act (“CIPA”).

On May 9, 2023, Plaintiff filed her class action complaint asserting causes of action for violations of the CIPA, specifically (1) Penal Code § 631(a) and (2) Penal Code § 632.7. 

On February 9, 2024, the Court – presided by the Honorable Yvette M. Palazuelos – found that the instant action is related to Los Angeles Court Case Nos. 23STCV09965, 23STCV10382, and 23STCV25683 and designated Case No. 23STCV09965 to be the lead action.  (Minute Order 2/9/24.)

On July 29, 2024, the Court sustained Defendant’s demurrer to the complaint to the second cause of action without leave.  (Order 6/29/24.)  Accordingly, only the first cause of action for violation of Penal Code § 631(a) remains. 
            On February 11, 2025, Plaintiff filed the instant motion for class certification and a proposed trial plan.  On April 4, 2025, Defendant filed an opposition to Plaintiff’s motion for class certification.  On April 11, 2025, Plaintiff filed a reply.

Allegations of the Operative Complaint

            The complaint alleges that:

            Defendant “operates https://www.harpercollins.com/, a platform to showcase and sell books, author information, and events.” (Complaint ¶ 9.) 

On the website, Defendant has a chatbox feature “that automatically records and creates transcripts of all such private conversations.”  (Id. ¶ 15.)  “Defendant has paid substantial sums to a third-party company (named ‘Tawk.to, Inc.’) to embed code into Defendant’s website chat function that enables Tawk.to, Inc. to secretly intercept in real time a website visitor’s chat conversation, eavesdrop upon it, and store transcripts of Defendant’s chat communications with unsuspecting website visitors.”  (Ibid.)  

“Tawk.to’s privacy policy reveals that they collect both personally-identifying and non-personally-identifying information, including but not limited to, browser type, language preference, geographical location, referring site, and visitor request details. Additionally, Tawk.to reserves the right to collect potentially personally-identifying information, such as Internet Protocol (IP) addresses, for both users and visitors, which may be disclosed in aggregate or for other purposes.”  (Id. ¶ 16.) “Tawk.to discloses personally-identifying information to their contractors and affiliated organizations, who may be located outside of the visitor’s home country.  Moreover, Tawk.to reserves the right to sell or transfer this information to third parties as indicated on their privacy policy[.]  (Id. ¶ 17.).  “Tawk.to, Inc publicly boasts of its ability to harvest valuable data from such communications for the benefit of their clients like Defendant[.]”. (Id. ¶ 18)  “Defendant neither informs visitors of this conduct nor obtains their consent to these intrusions.”  (Id. ¶ 19.)

“Plaintiff visited Defendant’s Website. Like anyone who accesses the internet, Plaintiff and class members use smart phones (cellular telephone with integrated computers and operating systems that enables web browsing), desktop computers, and/or wifi-enabled laptops that using a combination of cellular and landline telephony.”  (Id. ¶ 24.)  “Defendant did not inform Plaintiff, or any of the Class Members, that Defendant was secretly wiretapping or recording their communications or aiding, abetting, and paying third parties to eavesdrop on them, despite website users having a reasonable expectation of privacy in using the seemingly harmless chatbox feature.”  (Id. ¶ 25.)  “Defendant did not obtain Class Members’ express or implied consent to wiretap or allow third parties to eavesdrop on visitor conversations, nor did Class Members know at the time of the conversations that Defendant was secretly wiretapping them and allowing third parties to eavesdrop on them.”  (Id. ¶ 26.)

Legal Standard

Code of Civil Procedure § 382 allows a court to certify a class action “when the question is one of a common interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court . . .”.  Additionally, “[t]here must be questions of law or fact common to the class that are substantially similar and predominate over the questions affecting the individual members; the claims of the representatives must be typical of the claims or defenses of the class; and the class representatives must be able to fairly and adequately protect the interests of the class.”  (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 237–238.)

Stated differently, there are two broad requirements for a class action:  (1) an ascertainable class; and (2) a well-defined community of interest in the questions of law and fact involved.  (Hicks v. Kaufman & Broad Home Corp. (2001) 89 Cal.App.4th 908, 913; See also Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1021 (The party seeking certification “must demonstrate the existence of an ascertainable and sufficiently numerous class, a well-defined community of interest, and substantial benefits from certification that render proceeding as a class superior to the alternatives”).

“[I]n determining whether a class is ascertainable [courts] examine the class definition, the size of the class and the means of identifying class members[.]”  (Reyes v. San Diego County Bd. of Supervisors (1987) 196 Cal.App.3d 1263, 1274.)  “The community of interest requirement involves three factors: ‘(1) predominant common questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can adequately represent the class.’”  (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435 [quoting Richmond v. Dart Industries, Inc. (1981) 29 Cal.3d 462, 470].)  Further, “a class action cannot be maintained where each member's right to recover depends on facts peculiar to his case … because the community of interest requirement is not satisfied if every member of the alleged class would be required to litigate numerous and substantial questions determining his individual right to recover following the ‘class judgment’ determining issues common to the purported class.”  (City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 459.)

California follows the procedures set forth under Federal Rules of Civil Procedure 23 for class actions, whenever California authority is lacking.  (Vasquez v. Superior Court (1971) 4 Cal.3d 800, 821 [noting that for purposes of class action lawsuits, where California law is silent “rule 23 of the Federal Rules of Civil Procedure prescribes procedural devices which a trial court may find useful.”]; accord City of San Jose, supra, 12 Cal.3d at p.453 [“This court has urged trial courts to be procedurally innovative, encouraging them to incorporate procedures from outside sources in determining whether to allow the maintenance of a particular class suit. More specifically, we have directed them to rule 23 of the Federal Rules of Civil Procedure…”].) 

In addition to whether there is (1) an ascertainable class and (2) a well-defined commonality of interest, additional factors must be considered.  The potentially mandatory and discretionary factors applicable to class certification include:

·       Whether there is an ascertainable class (mandatory);

·       Whether there is a well-defined community of interest as to common questions of law or fact that predominate (mandatory);

·       Whether the class is so numerous that joinder of all members is impractical;

·       Whether the claims of the representative plaintiff are typical of the class;

·       Whether substantial benefits accrue to the litigants and courts;

·       Whether the proposed class is manageable;

·       Whether the person representing the class is able to fairly and adequately protect the interests of the class; and

·       Whether a class action is superior (including whether individual plaintiffs would bring claims for small sums).

See e.g., CCP § 382; Fed. Rules Civ.Proc., rule 23, 28 U.S.C.A.; Linder, supra, 23 Cal.4th at p.435; Prince v. CLS Transportation, Inc. (2004) 118 Cal.App.4th 1320, 1324; Feitelberg v. Credit Suisse First Boston, LLC (2005) 134 Cal.App.4th 997, 1014; In re Cipro Cases I and II (2004) 121 Cal.App.4th 402, 409.)

“In California it is settled that the class action proponent bears the burden of establishing the propriety of class certification.”  (Washington Mutual Bank, FA v. Superior Court (2001) 24 Cal.4th 906, 922.)  “[S]uch burden clearly contemplates a demonstration of predominance and manageability[.]”  (Ibid.)   This usually requires demonstration of predominance of common issues of law and fact and manageability of the proposed class.  (Lockheed Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096, 1103–1104.)  In making the determination as to whether the requirements for a class action have been met, a court may consider not only the parties’ pleadings but also extrinsic evidence, including declarations and discovery responses.  (Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 328–329.)

Importantly, in weighing the evidence, a court does not evaluate whether the claims asserted are legally or factually meritorious.  (Linder, supra, 23 Cal.4th at pp.439–440.)  However,  “[w]hen evidence or legal issues germane to the certification question bear as well on aspects of the merits, a court may properly evaluate them.”  (Brinker Restaurant Corp., supra, 53 Cal.4th at pp.1023–1024.)

Discussion

Class Plaintiff Seeks to Certify

            Plaintiff seeks certification of the proposed class consisting of “[a]ll persons within California who within the statute of limitations period: (1) communicated with Defendant via the chat feature on Defendant’s Website using cellular or landline telephony, and (2) whose communications were recorded and/or eavesdropped upon without prior consent.”  (Motion at p.8:16-18; see also Complaint ¶ 27.)  Plaintiff seeks statutory penalties on behalf of herself and the putative class.  (Complaint ¶ 38; see also Pen. Code, § 637.2(a)(1).)  Accordingly, the statute of limitations is one year from the filing of the complaint – i.e., May 9, 2022.  (CCP § 340(a) [“Within one year: [¶] (a) An action upon a statute for a penalty or forfeiture, if the action is given to an individual, or to an individual and the state, except if the statute imposing it prescribes a different limitation.”].) 

I.               Ascertainability

Plaintiff establishes with substantial evidence that the proposed class is ascertainable.  Defendant does not contest this issue.

Ascertainability “requires a class definition that is ‘precise, objective and presently ascertainable.’ [Citation.] Otherwise, it is not possible to give adequate notice to class members or to determine after the litigation has concluded who is barred from relitigating.”  (Global Minerals & Metals Corp. v. Superior Court (2003) 113 Cal.App.4th 836, 858.)  The class should be defined in terms of objective characteristics and common transactional facts that will enable identification of the class members when such identification becomes necessary.  (Hicks, supra, 89 Cal.App.4th at p.915.)

“[T]he goal is to use terminology that will convey sufficient meaning to enable persons hearing it to determine whether they are members of the class plaintiffs wish to represent.”  (Global Minerals & Metals Corp., supra, 113 Cal.App.4th at p.858.)

Importantly, “[a] class is still ascertainable even if the definition pleads ultimate facts or conclusions of law.”  (Hicks, supra, 89 Cal.App.4th 908, 915.)  “A class is ascertainable if objective means are available to identify its individual members at a reasonable expense.”  (Bridgeford v. Pacific Health Corp. (2012) 202 Cal.App.4th 1034, 1041.)

Here, the proposed class is ascertainable.  Plaintiff seeks to certify the Class defined as: “[a]ll persons within California who within the statute of limitations period: (1) communicated with Defendant via the chat feature on Defendant’s Website using cellular or landline telephony, and (2) whose communications were recorded and/or eavesdropped upon without prior consent.”  (Motion at p.8:16-18; see also Complaint ¶ 27.)  The proposed class members are readily identifiable.  Based on Defendant’s records it was able to determine that “[t]here are 2,073 unique email addresses with IP addresses associated with California that have engaged with the chat feature on [Defendant’s] website between May 9, 2022 and October 31, 2024.”  (Tauler Decl. ¶ 17, Exh. B [Defendant’s Response to Special Interrogatories, Set One No. 4].)  In light of the fact Defendant is able to determine the number chat users during the relevant time period with emails and IP addresses, Defendant’s records are sufficient to be able to easily identify the putative class members. 

Accordingly, the proposed class is ascertainable.

II.            Numerosity

            Plaintiff has established with substantial evidence that the proposed class is sufficiently numerous.  Defendant does not contest this issue.

            “[T]here is no set number required as a matter of law for the maintenance of a class action.”  (Hebbard v. Colgrove (1972) 28 Cal.App.3d 1017, 1030.)  In fact, California case law indicates that a class with as few as 10 or 28 members satisfies numerosity.  (See Bowles v. Superior Court (1955) 44 Cal.2d 574; see also Hebbard, supra, 28 Cal.App.3d at p.1030.)

            Here, as noted above, Defendant acknowledged in its response to Plaintiff’s interrogatories that “[t]here are 2,073 unique email addresses with IP addresses associated with California that have engaged with the chat feature on [Defendant’s] website between May 9, 2022 and October 31, 2024.”  (Tauler Decl. ¶ 17, Exh. B [Defendant’s Response to Special Interrogatories, Set One No. 4].)  Defendant’s response indicates that there are approximately 2,073 putative class members – if not more due to the date of the response to the interrogatory.  A proposed class of at least 2,073 putative class members is sufficiently numerous.

Accordingly, the proposed class is sufficiently numerous.

III.          Commonality

            In deciding whether the common questions “predominate,” courts must identify the common and individual issues; consider the manageability of those issues; and, taking into account the available management tools, weigh the common issues against the individual issues to determine which of them predominate.  (See Dunbar v. Albertson’s, Inc. (2006) 141 Cal.App.4th 1422, 1432–1433).

            Additionally, commonality “does not depend upon an identical recovery, and the fact that each member of the class must prove his separate claim to a portion of any recovery by the class is only one factor to be considered in determining whether a class action is proper. The mere fact that separate transactions are involved does not of itself preclude a finding of the requisite community of interest …”  (Vasquez v. Superior Court (1971) 4 Cal.3d 800, 809.)  However, a class action “will not be permitted . . . where there are diverse factual issues to be resolved, even though there may be many common questions of law.”  (Brown v. Regents of Univ. of California (1984) 151 Cal.App.3d 982, 988–989.)  “[E]ach member must not be required to individually litigate numerous and substantial questions to determine his right to recover following the class judgment[.]”  (City of San Jose, supra, 12 Cal.3d at p.460.)  In Arenas v. El Torito, Inc. (2010) 183 Cal.App.4th 723, the Court of Appeal observed:

The focus in a class certification dispute is not entirely on the merits but on the procedural issue of what types of questions are likely to arise in the litigation—common or individual. [Citations.] Thus, the existence of some common issues of law and fact does not dispose of the class certification issue. [Citations.] Rather, in order to justify class certification, the Supreme Court held, “[T]he proponent of certification must show . . . that questions of law or fact common to the class predominate over the questions affecting the individual members . . . .”

(Id. at p.732 [Italics Added].)

On a class certification motion, “‘the trial court must evaluate whether the theory of recovery advanced by the plaintiff is likely to prove amenable to class treatment.’ [Citation.]” (Jaimez v. Daiohs USA, Inc. (2010) 181 Cal.App.4th 1286, 1298 [bold added].)  “‘Predominance is a comparative concept, and “the necessity for class members to individually establish eligibility does not mean individual fact questions predominate.” [Citation.]’”  (Medrazo v. Honda of North Hollywood (2008) 166 Cal.App.4th 89, 99–100.)  Common issues are predominant when such issues would be primary to each individual action.  (Caro v. Procter & Gamble Co. (1993) 18 Cal.App.4th 644, 667–668.)  In addressing the commonality element, the Supreme Court in Brinker court stated:

[W]hether common or individual questions predominate will often depend upon resolution of issues closely tied to the merits. [Citations.] To assess predominance, a court “must examine the issues framed by the pleadings and the law applicable to the causes of action alleged.” [Citation.] It must determine whether the elements necessary to establish liability are susceptible of common proof or, if not, whether there are ways to manage effectively proof of any elements that may require individualized evidence. [Citation.] In turn, whether an element may be established collectively or only individually, plaintiff by plaintiff, can turn on the precise nature of the element and require resolution of disputed legal or factual issues affecting the merits.  For example, whether reliance or a breach of duty can be demonstrated collectively or poses insuperable problems of individualized proof may be determinable only after closer inspection of the nature of the reliance required or duty owed and, in some instances, resolution of legal or factual disputes going directly to the merits.

(Brinker Restaurant Corp., supra, 53 Cal.4th at p.1024, [Italics Added].)

In sum, “[p]resented with a class certification motion, a trial court must examine the plaintiff’s theory of recovery, assess the nature of the legal and factual disputes likely to be presented, and decide whether individual or common issues predominate.  To the extent the propriety of certification depends upon disputed threshold legal or factual questions, a court may, and indeed must, resolve them. Out of respect for the problems arising from one-way intervention, however, a court generally should eschew resolution of such issues unless necessary.”  (Brinker Restaurant Corp., supra, 53 Cal.4th at p.1025.)

            Here, Plaintiff seeks to certify the putative class for the single remaining cause of action for violating Penal Code § 631(a).

a.     Commonality as to Claim for Violation of Penal Code § 631(a)

“ ‘The purpose of [CIPA] was to protect the right of privacy by, among other things, requiring that all parties consent to a recording of their conversation.’ ”  (Smith v. LoanMe, Inc. (2021) 11 Cal.5th 183, 191.)  “ ‘ “In enacting [CIPA], the Legislature declared in broad terms its intent ‘to protect the right of privacy of the people of this state’ from what it perceived as ‘a serious threat to the free exercise of personal liberties [that] cannot be tolerated in a free and civilized society.’ (Pen. Code, § 630.) This philosophy appears to lie at the heart of virtually all the decisions construing the Privacy Act.” ’ [Citations.]”  (Gruber v. Yelp Inc. (2020) 55 Cal.App.5th 591, 606.) 

To this end, Penal Code § 631(a) provides that:

(a) Any person who, by means of any machine, instrument, or contrivance, or in any other manner,

[i] 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

[ii] 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

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

[iv] 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 a fine ....

(Yoon v. Lululemon USA, Inc. (C.D. Cal. 2021) 549 F.Supp.3d 1073, 1080 [setting forth Penal Code § 631 with “line breaks and subdivisions added for ease of reference”].)

“Subdivision (a) of section 631 prescribes criminal penalties for three distinct and mutually independent patterns of conduct: [1] intentional wiretapping, [2] wilfully [sic] attempting to learn the contents or meaning of a communication in transit over a wire, and [3] attempting to use or communicate information obtained as a result of engaging in either of the previous two activities.”  (Tavernetti v. Superior Court (1978) 22 Cal.3d 187, 192.)  Therefore, “[a] violation under the third clause of § 631(a) is contingent upon a finding of a violation of the first or second clause of § 631(a).”  (Swarts v. Home Depot, Inc. (N.D. Cal. 2023) 689 F.Supp.3d 732, 744.)  “A party may be held vicariously liable under the fourth clause of § 631 where it ‘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’ prohibited in the first three clauses.”  (Ibid.)  Under Penal Code § 637.2, a person can bring a civil cause of action for a violation of CIPA. 

            Here, Plaintiff alleges that Defendant violated the first three clauses of Penal Code § 631(a).  (Complaint ¶ 33.)  Plaintiff alleges that Defendant both directly violated these provisions and indirectly violated these provisions by aiding and abetting third party Tawk.to’s violation of these three provisions of subdivision (a) of section 631.  (Id. ¶ 25, [“Defendant did not inform Plaintiff, or any of the Class Members, that Defendant was secretly wiretapping or recording their communications or aiding, abetting, and paying third parties to eavesdrop on them, despite website users having a reasonable expectation of privacy in using the seemingly harmless chat box feature.”], [italics added].) 

            As the Court explained in its order on its demurrer, under the party exception, it is impossible for Defendant to directly violate section 631(a).  (Order 7/29/24 at p.12.)  “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.”  (Rogers v. Ulrich (1975) 52 Cal.App.3d 894, 899.)  Thus, section 631 “has been held to apply only to eavesdropping by a third party and not to recording by a participant to a conversation.”  (Warden v. Kahn (1979) 99 Cal.App.3d 805, 811; accord In re Facebook, Inc. Internet Tracking Litigation (9th Cir. 2020) 956 F.3d 589, 607.)  Thus, the only viable theory of liability is that Defendant “aid[ed], agree[d] with, employ[ed], or conspire[ed] with [the third party Tawk.to] to unlawfully do, or permit, or cause to be done any of the acts or things” prohibited by the first three clauses of section 631(a). 

            Because a violation of the third clause of section 631(a) is contingent on a violation of the first or second clauses of section 631(a), Plaintiff must show that Tawk.to violated one of the first two clauses of section 631(a).  (See Swarts, supra, 689 F.Supp.3d at p.744.)  Plaintiff cannot rely on showing that Tawk.to violated the first clause of section 631(a) because the first clause of section 631(a) does not apply to communications over the internet, such as the communications at issue here.  (See e.g., Complaint ¶ 34.)

Numerous federal cases hold that section 631(a)’s first clause does not apply to internet communications.  (See e.g., Licea, supra, 659 F.Supp.3d at p.1080, [holding that “the first clause of Section 631(a) does not apply to communications over the internet.”]; Javier, supra, 649 F.Supp.3d at p.897, fn. 3 [holding that “the first prong of Section 631 does not apply to internet communications”]; Valenzuela v. Super Bright LEDs Inc. (C.D. Cal., Nov. 27, 2023, No. EDCV2301148JAKSPX) 2023 WL 8424472, at *3, [“The first clause of § 631 ‘protects only communications that are made over a “wire, line, or cable.” ’ [Citation.] It does not apply to Internet communications.”].) 

A plain reading of the first clause of section 631(a) supports this conclusion.  The first clause applies to “[a]ny 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 telephonic communication system…”  (Pen. Code, § 631(a), [italics added].)  The plain language of the statute indicates that the first clause is limited only to “telegraphic or telephone” wires, lines, or cables.  (Gruber, supra, 55 Cal.App.5th 591, 605 [ “ ‘ “The statute's plain meaning controls the court's interpretation unless its words are ambiguous.” ’ ”].)  Thus, to prove liability, Plaintiff must show either (a) that Defendant “aid[ed], agree[d] with, employ[ed], or conspir[ed] with [the third party Tawk.to] to unlawfully do, or permit, or cause to be done any of the acts or things” in Tawk.to’s violation of the second clause of section 631(a) [without consent of all parties, reading, attempting to read or learning the contents of any message or communication while in transit or passing over any wire, line, or cable or as it is being sent from or received at any place within California], or (b) that Defendant “aid[ed], agree[d] with, employ[ed], or conspire[ed] with [the third party Tawk.to]” in Tawk.to’s use of, attempt to use, or communication of information obtained in violation of the second clause of section 631(a). 

Here, Plaintiff contends that “liability under all four prongs above focuses on Defendant’s conduct and Tawk.to’s software, which functioned in the same manner for every class member, the issues here will [therefore] be subject to common proof.”  (Motion at p.11:17-19.)  In support of this contention, Plaintiff relies on the declaration and report of Dr. Timoth Libert – an expert in web technology and data privacy.  (Libert Decl. ¶¶ 5-10, Exh. A.)  In examining Defendant’s website chat feature, Dr. Libert utilized a Google Chrome web browser and used “the ‘Developer Tools Protocol’ to record all network traffic, cookies, code, and content being sent to and from [his] computer.”  (Libert Decl. ¶ 17(a).)  Second, Dr. Libert used various forensic preservation techniques to save and store this data.  (Libert Decl. ¶ 17(b).)  Third, Dr. Libert captured the web browsing data, examined the network addresses to which the data is sent, and examined the type of data being sent.  (Libert Decl. ¶ 17(c).) 

Based on his examination, Dr. Libert determined that through a “WebSocket” that connects the user and Defendant to Tawk.to’s servers, Defendant essentially “routes” the messages between the user and Defendant through Tawk.to which acts like a call center.  (Libert Decl. ¶¶ 18-19.)  Through this process, names, emails, and message content are sent to Tawk.to.  (Libert Decl. ¶¶ 18-19.)  Plaintiff further contends that “Dr. Libert’s forensic analysis demonstrates that the same code operates uniformly across all devices and browsers, which ensures that each interaction with the chat box results in the immediate diversion of user inputs to Tawk.to’s servers.”  (Motion at p.12:6-8.)  Plaintiff cites only to Dr. Libert’s declaration as the basis for this claim.  However, Dr. Libert does not state anywhere in his declaration that the “same code operates uniformly across all devices and browsers.”  Nor could he as per his declaration he only examined Defendant’s chat feature through “an unmodified Google Chrome web browser” on his computer.  (Libert Decl. ¶ 17.)  Thus, Dr. Libert’s declaration – the only evidence to which Plaintiff cites – does not support Plaintiff’s contention that the same code operates uniformly across all devices and browsers.

At some point during the class period, Plaintiff used the chat feature on Defendant’s website.  (Heiting Decl. ¶ 3.)  “At the time, [Plaintiff] was unaware that [her] communications were being intercepted, recorded, and transmitted to a third part, Tawk.to, without [her] knowledge or consent.  There was no consent banner or any other warning that the chats would be sent to a third party or be tracked by a third party.”  (Heiting Decl. ¶ 3.) 

In sum, Plaintiff’s evidence indicates that the chat messages of a putative class member using a Google Chrome web browser on a computer would be sent to Tawk.to in real time, and that at some point during the class period, Defendant’s website did not display a banner or other warning indicating that the chat would be sent to a third party.  However, Plaintiff fails to point to any evidence indicating that Plaintiff’s experience in the lack of warning that the chats would be sent to a third party is universal to all users during the class period.  Further, Plaintiff fails to show that the Defendant’s code for the chat operated uniformly across all devices and browsers during the class period.  Thus, Plaintiff fails to show that Defendant’s conduct was standardized such that common issues predominate.   

Moreover, Plaintiff fails to address consent, namely, how Plaintiff can show on a class wide basis that the putative class members did not consent recording of their chats by a third party – i.e., Tawk.to. 

As discussed above, to prove liability, Plaintiff must show that either (a) that Defendant “aid[ed], agree[d] with, employ[ed], or conspir[ed] with [the third party Tawk.to] to unlawfully do, or permit, or cause to be done any of the acts or things” in Tawk.to’s violation of the second clause of section 631(a) [without consent of all parties, reading, attempting to read or learning the contents of any message or communication while in transit or passing over any wire, line, or cable or as it is being sent from or received at any place within California], or (b) that Defendant “aid[ed], agree[d] with, employ[ed], or conspire[ed] with [the third party Tawk.to]” in Tawk.to’s use of, attempt to use, or communication of information obtained in violation of the second clause of section 631(a). 

The second clause of section 631(a) makes it unlawful for anyone:

[ii] 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

(Yoon, supra, 549 F.Supp.3d at p.1080 [setting forth Penal Code § 631 with “line breaks and subdivisions added for ease of reference”] [italics added].)  Because the statute requires that the recording be made without the consent of all parties, whether each putative class member consented to Tawk.to intercepting and recording the chat conversations between the putative class members and Defendant is an element of Plaintiff’s claim that Defendant aided and abetted Tawk.to in intercepting and recording said chat conversations and also of Plaintiff’s claim that Defendant used information that Tawk.to obtained in violation of the third clause of section 631(a). 

            Defendant’s opposition evidence shows that during the class period, the format of the chat box changed.  Defendant’s Technical Operations Manager, Robert Gallini, is responsible for overseeing the chat feature on Defendant’s website.  (Gallini Decl. ¶¶ 1-3.)  Between May 9, 2022 and April 5, 2023, during business hours – 8 AM to 5 PM Central Time, Monday through Friday – Defendant’s chat box displayed three fields presented to the putative class members – name, email address, and a space to compose a message or question.  (Gallini Decl. ¶ 22.)  At the bottom of the box, the chat box displayed Tawk.to’s brand disclosure containing Tawk.to’s corporate image – a parrot – and the words “Add free live chat to your site[.]”  (Gallini Decl. ¶ 23, Exh. F.)  The text “live chat” contained a hyperlink to Tawk.to’s website.  (Gallini Decl. ¶ 23.)

After business hours, putative class members would not be able to live chat with Defendant’s customer service reps.  (Gallini Decl. ¶ 28.)   Accordingly, between May 9, 2022 and April 5, 2023, during nonbusiness hours, the chat box would contain the following text at the top: “Please fill out the form below and we will get back to you as soon as possible. We are available Monday - Friday, 8 am - 5 pm Central.”  (Gallini Decl. ¶ 28.) 

            “Beginning on April 5, 2023, [Defendant] added the following additional text in the chat box immediately above where the consumer inputs their name, email address, and question: ‘This chat may be monitored or retained by HarperCollins and its business partners in accordance with our Privacy Notice.’”  (Gallini Decl. ¶ 25.)  The Privacy Notices in effect during the class time period informed users that Defendant will share some or all data collected on the site with “service Providers.”  (Gottlieb Decl. ¶¶ 6-7, Exh. C [Privacy Policy May 24, 2018 – January 11, 2023], Exh. D [Privacy Policy January 12, 2023 – May 31, 2024], Exh. E [Privacy Policy June 1, 2024 – present].)  

After April 5, 2023, during nonbusiness hours, the chat box would state at the top: “Please fill out the form below and we will get back to you as soon as possible. We are available Monday - Friday, 8 am - 5 pm Central [¶] This chat may be monitored or retained by HarperCollins and its business partners in accordance with our Privacy Notice.”  (Gallini Decl. ¶ 30.) 

            Beginning on May 5, 2023, Defendant added an additional disclosure directly to the chat box.  “This additional disclosure appeared as a pop-up the first time a website visitor accessed the chat box. First-time users would encounter this disclosure during Business Hours or Afterhours (i.e., anytime outside of Business Hours). The disclosure provided: ‘By checking this box you agree to the use of cookies in order to engage in chat and to have your personal data processed by tawk.to. You confirm that you have read and agree to our Terms of Use and Privacy Notice’. The Terms of Use and Privacy Notice are hyperlinked in the disclosure box. Below the disclosure text are two buttons: ‘Not now’ and ‘I accept.’ If the website visitor clicked the ‘I accept’ button, they would proceed to the chat box [], where they could insert their name, email address and message and begin chatting with a HarperCollins customer service representative. If the website visitor clicked the ‘Not now’ button, they would not be able to chat with a customer service representative.”  (Gallini Decl. ¶ 26.) 

            Based on this evidence, Defendant’s disclosures on the chat box are not universal for the putative class members and instead depended on when the putative class member used the chat – the date that the putative class member used the chat and the time of day the putative class member used the chat.  Whether the putative class member consented to Tawk.to intercepting and recording the chat conversations between the putative class members and Defendant would undoubtedly depend on the disclosure on the chat box.  This lack of commonality is compounded by the fact that consent under CIPA can be implicit.

            In Rojas v. HSBC Card Services Inc. (2023) 93 Cal.App.5th 860, the plaintiff received hundreds of calls from her daughter – an employee of the defendant – which were recorded by the defendant’s full-time recording system.  (Id. at p.865.)  The plaintiff alleged that the defendant intentionally recorded confidential calls without her consent in violation of CIPA.  (Ibid.)  After a bench trial, the trial court entered judgment in favor of defendant  (Ibid.) 

In relevant part, the plaintiff had a credit card with defendant and knew that her daughter worked for defendant’s Card Services at a call center.  (Id. at p.880.)  The defendant’s credit card agreement required the plaintiff to agree that defendant could listen to and record phone calls between the plaintiff and defendant’s representatives.  (Ibid.)  Finally, to make her payments on her credit card with the defendant, the plaintiff would call a customer service line once a month.  (Ibid.)  Each time the plaintiff called this customer service line, plaintiff received a disclosure saying that that call may be recorded.  (Ibid.)  The trial court concluded that these disclosures put the plaintiff on notice of recording and that she therefore impliedly consented to the recording of her calls.  (Id. at p.881.) 

On appeal, the Court of Appeal noted that “implied consent constitutes ‘consent’ under the Privacy Act.”  (Ibid.)  In determining implied consent, the Court of Appeal incorporated federal case law finding that:

“[I]mplied consent is ‘consent in fact’ which is inferred ‘from surrounding circumstances indicating that the [party] knowingly agreed to the surveillance.’ [Citations.] ... The circumstances ... will vary from case to case, but ... will ordinarily include language or acts which tend to prove (or disprove) that a party knows of, or assents to, encroachments on the routine expectation that conversations are private.”

(Id. at p.885 [italics added].) 

            The Court of Appeal then concluded that substantial evidence supported the trial court’s finding that the plaintiff impliedly consented to the recording and therefore could not prove a lack of consent under CIPA.  (Id. at p.887.) 

            Here, in addition to the changing disclosures on the chat box, Defendant provided various other disclosures to users that the chats were being recorded.  The Privacy Notices in effect during the class time period informed users that Defendant would share some or all data collected on the site with “service Providers.”  (Gottlieb Decl. ¶¶ 6-7, Exh. C [Privacy Policy May 24, 2018 – January 11, 2023], Exh. D [Privacy Policy January 12, 2023 – May 31, 2024], Exh. E [Privacy Policy June 1, 2024 – present].)  In each of these Privacy Notices, Defendant also included a hyperlink to Defendant’s California Privacy Policy in effect at the time.  (Gottleib Decl. ¶ 8, Exh. F [California Privacy Policy January 1, 2020 – December 31, 2022], Exh. G [California Privacy Policy January 1, 2023 – May 30, 2024], Exh. H [California Privacy Policy June 1, 2024 – Present].)  In each of these California Privacy Policies, Defendant informed “California visitors of the categories of personal information that HarperCollins collects—including IP addresses—and the business or commercial purposes for which it collects such information, such as ‘providing customer service,’ including third-party Service Providers.”  (Ibid.)  In addition, since January 1, 2023, the Privacy Notices have contained a hyperlink to the applicable Cookie Notice in effect.  (Gottleib Decl. ¶ 9, Exh. I [Cookie Notice January 1, 2023 – May 31, 2024], Exh. J [Cookie Notice June 1, 2024 – present].)  Each of these Cookie Notices inform users what information is collected and used through cookies – such as those embedded in the chat feature.  (Ibid.) 

            In addition to the disclosures in the various privacy notices and on the chat box itself, from November 19, 2024, through January 6, 2025, Defendant’s website displayed an opt-in cookie banner when a user first visited the cite “provid[ing] website visitors a level of control to consent, decline, or manage cookies and similar tracking technologies[.]”  (Gottlieb Decl. ¶ 4.)  “Beginning on or around January 8, 2025, when individuals navigate to harpercollins.com for the first time, they encounter a notice-only cookie banner (the ‘Current Cookie Banner’). This is a pop up window (banner) providing transparency into [Defendant’s] use of website tracking technologies. The Current Cookie Banner informed visitors that, ‘[t]his site uses tracking technologies to improve your experience. By continuing, you agree to our Terms of Use and Privacy Notice.’ The Current Cookie Banner features hyperlinks to HarperCollins’ Terms of Use and Privacy Notice.”  (Gottlieb Decl. ¶ 5.) 

Based on when a putative class member visited the website (date and time of day), the putative class member’s interaction with Defendant’s website, and the number of times the class member previously visited the website or used the chat function, the putative class member would have varying levels of inquiry notice of Tawk.to recording the chats between the respective putative class member and Defendant.  For example, a putative class member who visited Defendant’s website on November 20, 2024 during non-business hours would first be confronted with the opt in cookie banner informing the putative class member of the various tracking cookies used by Defendant and the types of information obtained.  Assuming the putative class member proceeded straight to the chat box, the chat box itself would state “Please fill out the form below and we will get back to you as soon as possible. We are available Monday - Friday, 8 am - 5 pm Central [¶] This chat may be monitored or retained by HarperCollins and its business partners in accordance with our Privacy Notice.”  (Gallini Decl. ¶ 30.)  The opt-in cookie banner, the clear disclaimer that the chat may be recorded by Defendant and business partners, and the reference to the Privacy Policy which itself links to the California Privacy Policy and Cookie Notice – which all in some form identify that a third party may record the chat – could support a jury finding that the putative class member impliedly consented to Tawk.to recording the chat.  Accordingly, an individual determination of each putative class member’s individual experience with Defendant’s website would be necessary to determine whether the class member impliedly consented to Tawk.to’s recording of the putative class member’s chat conversations with Defendant. 

            In addition, an individual inquiry into each of the putative class member’s unique experience – such as the length of the putative class member’s relationship with Defendant and the putative class member’s experience with chat boxes with other business – would be relevant. 

In Hataishi v. First American Home Buyers Protection Corp. (2014) 223 Cal.App.4th 1454, the plaintiff alleged her home warranty company – the defendant – violated CIPA by recording her phone conversations without her consent. (Id. at pp.1457–1459.)  The plaintiff sought to certify a class only of outbound call recipients (those who received the phone call that was monitored).  (Id. at p.1459.)  The evidence presented at the certification motion showed that most inbound callers received an automated disclosure regarding call monitoring, but customers who received outbound calls from defendant’s employees were not given the message.  (Id. at p. 1457–1460.)  In opposing class certification, the defendant asserted that “each putative class member's unique experiences—including the length of the class member's relationship with [the defendant’s agent], the number of times the class member heard [the] automated disclosure regarding the recording of inbound calls, and the class member's experience with other businesses that monitor calls for quality assurance—would be relevant to assessing whether a particular class member reasonably believed an outbound call ... would not be recorded.” (Id. at p.1460.)  The trial court agreed finding – in relevant part – that the plaintiff failed to show commonality.  (Ibid.)

The Court of Appeal agreed, concluding that “the determination whether an individual plaintiff had an objectively reasonable belief that his or her conversation with [the defendant] would not be recorded will require individualized proof of, among other things, ‘the length of the customer-business relationship [and] the [plaintiff's] prior experiences with business communications....’ ” (Id. at p. 1467.)  The Court of Appeal pointed to the fact that “[p]laintiff's unique circumstances—including the fact that she had made approximately a dozen calls to [the defendant] during which she was told that the call ‘may be monitored or recorded’—sets her apart, for purposes of assessing the reasonableness of her expectations, from other customers who never heard the disclosure or heard it only a few times. Likewise, [the] [p]laintiff's prior experience with other businesses—the ‘dozens and dozens and dozens’ of telephone calls where she understood her call could be recorded or monitored for quality assurance—could support a jury finding that she lacked an objectively reasonable expectation that her calls with [Defendant] would not be recorded.”  (Id. at p.1468.)

As in Hataishi, Plaintiff’s experience in the instant action is unique.  On March 30, 2023, Plaintiff spent a total of six minutes on Defendant’s website – three of which were in the chat box.  (Gallini Decl. ¶ 55.)  Plaintiff visited a single webpage and did not navigate to any other pages.  (Gallini Decl. ¶ 55.)  Prior to visiting Defendant’s website and using the chat, Plaintiff had already filed a lawsuit, on March 8, 2023, against a different company asserting that the company’s website’s chat feature violated CIPA.  (Seiling Decl. ¶ 8, Exh. C [Complaint in Heiting v. Ring Central, Inc., Los Angeles Superior Court Case No. 23STCV05116].)  Prior to visiting Defendant’s website, Plaintiff visited and tested the chat box for CIPA violations of more than 50 different websites.  (Seiling Decl. ¶ 18, Exh. O [Heiting Depo. at p.147:4-25].)  Defendant’s website was one of 27 websites that Plaintiff visited and tested for CIPA violation on March 30, 2023.  (Seiling Decl. ¶ 18, Exh. O [Heiting Depo. at p.142:13-15].)  Plaintiff is admittedly a litigation tester and “understand[s] that a lawsuit is possible when [she] uses the chat feature on a website[.]”  (Heiting Decl. ¶ 8.)  In light of Plaintiff’s extensive experience with chat box’s and her acute awareness that businesses may have third parties record chat conversation without any notice – due to the lawsuits that she has filed alleging as such – a jury could reasonably conclude that Plaintiff lacked an objectively reasonable expectation that her chat with Defendant would not be recorded by a third party – despite the lack of an explicit disclosure on the chat box.

In contrast, “[a] jury could rationally reach a different conclusion concerning another plaintiff who has not had the same experience. In any event, due process requires that [Defendant]  be permitted to cross-examine an individual plaintiff regarding those experiences that may impact the reasonableness of his or her alleged confidentiality expectation.”  (Hataishi, supra, 223 Cal.App.4th at p.1468.)  In sum, because consent can be implied “the trier of fact would have to determine whether a person under the particular circumstances and given the background and experience of each plaintiff would have understood that the particular [chat] was not being [recorded by a third party].”  (Kight v. CashCall, Inc. (2014) 231 Cal.App.4th 112, 130.)

In reply, Plaintiff contends that the reasoning in Hataishi is inapplicable because it “concerned voice recordings in telephone calls, where the surrounding context and disclosures varied significantly among class members.”  (Reply at p.3:16-17.)  Plaintiff claims that “the technology at issue [here] was embedded into a static website interface that functioned identically for every user. … There were no individualized advisements, no opt-in features, and no visible warnings disclosing Tawk.to’s data interception capabilities.”  (Reply at p.3:19-22.)  Plaintiff is mistaken.  There is ample evidence that Defendant’s website changed throughout the class period and includes even more obvious disclosures.  Thus, each putative class member’s experience with Defendant’s website was different based on when they accessed the website. 

Moreover, because consent under CIPA can be implied, the trier of fact will be required to look at the surrounding circumstances for each putative class member.  (Rojas, supra, 93 Cal.App.5th at p.885.)  Plaintiff points to no case law limiting these surrounding circumstances to just Defendant’s website. 

In reply, Plaintiff also contends that the Court should not deny this motion based on Defendant’s speculation that some class members implicitly consented to Tawk.to’s recording of chat conversations because “Defendant has not identified a single user who understood that their messages were being transmitted to and intercepted by a third party.”  (Reply at p.4:10-11.)  Plaintiff is again mistaken. 

Consent is not a defense that Defendant must prove.  Rather, Plaintiff must show that the putative class members did not consent to the recording because this is an element of the claim.  Plaintiff has not provided any argument or reasoning as to how this can be done on a class wide basis especially given that putative class members may have implicitly consented to the recording.

Accordingly, Plaintiff fails to meet her burden to show that her claim for violation of Penal Code § 631(a) is susceptible to common proof.

IV.          Typicality

The purported class representative’s claim must be “typical” but not necessarily identical to the claims of other class members.  It is sufficient that the representative is similarly situated so that he or she will have the motive to litigate on behalf of all class members.  (Classen v. Weller (1983) 145 Cal.App.3d 27, 45.)  Thus, it is not necessary that the class representative have personally incurred all of the damages suffered by each of the other class members.  (Wershba, supra, 91 Cal.App.4th at p.228.)

Typicality refers to the nature of the claim or defense of the class representative, and not to the specific facts from which it arose or the relief sought.  The test of typicality is whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct.

(Seastrom v. Neways, Inc. (2007) 149 Cal.App.4th 1496, 1502.)

Here, Plaintiff’s claims are not typical of the putative class.  On March 30, 2023, Plaintiff spent a total of six minutes on Defendant’s website – three of which were in the chat box.  (Gallini Decl. ¶ 55.)  Plaintiff visited a single webpage and did not navigate to any other pages.  (Gallini Decl. ¶ 55.)  Prior to visiting Defendant’s website and using the chat, Plaintiff had already filed a lawsuit, on March 8, 2023, against a different company asserting that the company’s website’s chat feature violated CIPA.  (Seiling Decl. ¶ 8, Exh. C [Complaint in Heiting v. Ring Central, Inc., Los Angeles Superior Court Case No. 23STCV05116].)  Prior to visiting Defendant’s website, Plaintiff visited and tested the chat box for CIPA violations of more than 50 different websites.  (Seiling Decl. ¶ 18, Exh. O [Heiting Depo. at p.147:4-25].)  Defendant’s website was one of 27 websites that Plaintiff visited and tested for CIPA violation on March 30, 2023.  (Seiling Decl. ¶ 18, Exh. O [Heiting Depo. at p.142:13-15].)  Plaintiff is admittedly a litigation tester and “understand[s] that a lawsuit is possible when [she] uses the chat feature on a website[.]”  (Heiting Decl. ¶ 8.)

In light of Plaintiff’s experience, a jury could reasonably conclude that Plaintiff lacked an objectively reasonable expectation that her chat with Defendant would not be recorded by a third party – despite the lack of an explicit disclosure on the chat box.  In contrast, a putative class member with little to no experience with chat boxes would likely not face the same hurdles as to whether he or she implicitly consented to the recording.  Thus, Plaintiff has failed to meet her burden as to typicality.

V.             Adequacy of Representation

            “The primary criterion in determining adequacy of representation is whether the representative, through qualified counsel, ‘vigorously and tenaciously protected the interests of the class.’”  (Simons v. Horowitz (1984) 151 Cal.App.3d 834, 846.)  Additionally, the class representative must “raise claims reasonably expected to be raised by the members of the class[.]” (City of San Jose, supra, 12 Cal.3d at p.464.)  The fiduciary duty must be undertaken free of demonstrable conflicts of interest with other class members.  (Amchem Products, Inc. v. Windsor (1997) 521 U.S. 591, 625–626.)  The “adequacy of representation” requirement has not been precisely differentiated from the typicality requirement.  (Caro, supra, 18 Cal.App.4th at p.670.)  Other cases have stated that adequacy of representation depends on whether plaintiff’s attorney is qualified to conduct the proposed litigation and plaintiff’s interests are not antagonistic to the interests of the class.  (McGhee v. Bank of America (1976) 60 Cal.App.3d 442, 450.)

A.    Plaintiff’s Counsel

Plaintiff’s Counsel have each submitted a declaration attesting to their experience and qualifications.  (Cole Decl. ¶¶ 2-8; Tauler Decl. ¶¶ 2-9.)  Lead Attorney Kevin J. Cole has been certified as class counsel in two prior actions – Parker v. Stoneledge Furniture, LLC (M.D. Fl. Case No. 8:21-cv-00740- CEH-AEP) and Plaintiff No. 1, et al. v. USA (U.S. Ct. of Federal Claims Case No. 1:20-cv00454-KCD) – which resulted in a settlement and judgment in the Plaintiff’s favor respectively.  (Cole Decl. ¶ 5.)  Attorney Cole has also defended against numerous class actions.  (Cole Decl. ¶ 7.)

Attorney Robert Tauler has worked on multiple class actions.  (Tauler Decl. ¶¶ 5-6.)  Attorney Tauler was lead defense counsel in Ayala v. Central Coast Agriculture (Santa Clara County Superior Court Case No. 22CV407762) which was dismissed after the defendant’s demurrer was sustained without leave and is now on appeal.  (Tauler Decl. ¶ 5.)  Attorney Tauler “also gained substantial exposure to class actions while working at Greenberg Traurig, including in the matter of Schlesinger, et al. v. Ticketmaster, Los Angeles Superior Court Case No. BC 304565, which included significant post-certification work.”  (Tauler Decl. ¶ 6.)  Attorney Tauler also has experience with CIPA chat box cases.  (Tauler Decl. ¶ 7.)

In opposition, Defendant contends that Tauler is not an adequate class representative because (1) Tauler does not identify a single CIPA case where a court has certified a class and appointed him class counsel, (2) Tauler asserted a claim that Defendant violated Penal Code section 632.7 based on the false allegation that Plaintiff accessed Defendant’s website with a smartphone, (3) Tauler’s firm Tauler Smith, LLP was found civilly liable for violating the federal RICO statute, and (4) Tauler has been sanctioned and admonished by courts in the past.

There is no requirement that class counsel have previously been appointed class counsel in a certified action involving a similar issue.  Especially here where Plaintiff’s claim has not been largely litigated in class action environments.  The fact that Tauler has been admonished and sanctioned for unprofessional behavior in the past does not show that Tauler cannot adequately represent the class.

            In the civil action where Tauler’s firm, Tauler Smith, LLP, was found civilly liable for violating the federal RICO statute, Defendant cites to evidence that Tauler Smith, LLP was involved in “a scheme to defraud small businesses by mailing baseless demand letters to obtain a quick settlement.”  (In re Outlaw Laboratories, LP Litigation (S.D. Cal., Oct. 5, 2023, No. 18-CV-840-GPC-BGS) 2023 WL 6522383, at *1.)  The cited opinion also states that Attorney Tauler “ ‘came up with the idea of ... creat[ing] a new product [to] ... sue everybody else who's putting in illegal stuff and ... recoup [the] money back[],’ ” and sent demand letters based on knowingly fraudulent claims.  (Id. at *2.) 

            Here, in the instant action, Plaintiff admitted in her deposition that she always uses her MacBook Pro when she tests a website.  (Seiling Decl. ¶ 18, Exh. O [Heiting Depo. at p.75:1-12].)  Plaintiff further admitted that the allegation that she used a smartphone in paragraph 40 of the complaint was false.  (Seiling Decl. ¶ 18, Exh. O [Heiting Depo. at p. 126:6-12].)  Thus, the allegation in the second cause of action that Defendant violated Penal Code § 632.7 because Plaintiff accessed Defendant’s chat on a smartphone – which this Court sustained without leave on different grounds – was based on a false allegation.

            The fact that Tauler Smith, LLP was found civilly based on Attorney Tauler asserting false claims in demand letters and the false allegation in the instant complaint may raise other ethical concerns.  (See e.g., Rules Prof. Conduct, 3.1.)  However, these claims of misconduct did not involve unethical conduct directed at his client(s) and therefore do not create a serious doubt that Tauler will not represent the class loyally.

B.    Plaintiff

Plaintiff states that she is willing to act as class representative and understands her fiduciary responsibilities.  (Heiting Decl. ¶ 6.)  Moreover, there does not appear to be any conflict of interest.  (Heiting Decl. ¶ 7.)

In opposition, Defendant contends that Plaintiff is not an adequate class representative because she lacks credibility.  Plaintiff admitted that the allegation that she used a smartphone in paragraph 40 of the complaint was false.  (Seiling Decl. ¶ 18, Exh. O [Heiting Depo. at p. 126:6-12].)  However, the complaint is not a document under oath and Plaintiff did not sign the complaint.  At most this indicates that Plaintiff may not be able to prove all allegations of the complaint.

VI.          Superiority and Trial Plan

            Plaintiffs have failed to establish with substantial evidence that a class action is superior to individual lawsuits.

            In deciding whether a class action would be “superior” to individual lawsuits, a court will usually consider:

(1) The interest of each member in controlling his or her own case personally;

(2) The difficulties, if any, that are likely to be encountered in managing a class action;

(3) The nature and extent of any litigation by individual class members already in progress involving the same controversy; and

(4) the desirability of consolidating all claims in a single action before a single court.

California Practice Guide, Civil Procedure Before Trial (Rutter Group 2023), ¶ 14:16 (citing Federal Rule of Civil Procedure 23(b)(3) (Rutter Guide); see also Basurco v. 21st Century Ins. Co. (2003) 108 Cal.App.4th 110, 120; Newell v. State Farm Gen. Insurance Co. (2004) 118 Cal.App.4th 1098, 1101; Lee v. Dynamex, Inc. (2008) 166 Cal.App.4th 1325, 1333; Johnson v. GlaxoSmith-Kline, Inc. (2008) 166 Cal.App.4th 1497, 1510; Ghazaryan v. Diva Limousine, Ltd. (2008) 169 Cal.App.4th 1524, 1537.)

Under California law, a class action is not “superior” where there are numerous and substantial questions affecting each class member’s right to recover, following determination of liability to the class as a whole.  (City of San Jose, supra, 12 Cal.3d at p.459.)

In Duran v. U.S. Bank National Assn. (2014) 59 Cal.4th 1, the California Supreme Court noted as follows:

If statistical evidence will comprise part of the proof on class action claims, the court should consider at the certification stage whether a trial plan has been developed to address its use.  A trial plan describing the statistical proof a party anticipates will weigh in favor of granting class certification if it shows how individual issues can be managed at trial.  Rather than accepting assurances that a statistical plan will eventually be developed, trial courts would be well advised to obtain such a plan before deciding to certify a class action. 

(Id. at pp.31–32 [emphasis in original].) 

Trial courts must pay careful attention to manageability when deciding whether to certify a class action.  In considering whether a class action is a superior device for resolving a controversy, the manageability of individual issues is just as important as the existence of common questions uniting the proposed class.  If the court makes a reasoned, informed decision about manageability at the certification stage, the litigants can plan accordingly and the court will have less need to intervene later to control the proceedings.

(Ibid.)

            Here, in light of the predominance of individual issues, a class action is not superior.  Due process requires an opportunity for Defendant to cross-examine each putative class member regarding their experiences that may impact whether they impliedly consented to Tawk.to recording the chat conversations between the putative class member and Defendant.  (Hataishi, supra, 223 Cal.App.4th at p.1468.)  The cross-examination of over 2,000 class members in a single class action is not superior to individual actions.  Plaintiff’s trial plan provides no mechanism as to how this can be reasonably managed.

Moreover, there is no indication of how any of Defendant’s affirmative defenses are going to be addressed.  The Supreme Court has explained “the court must also conclude that litigation of individual issues, including those arising from affirmative defenses, can be managed fairly and efficiently.”  (Duran, supra, 59 Cal.4th at p.29, [Bold and Italics added].)  Accordingly, Plaintiff fails to show that a class action is superior or can be reasonably managed.

CONCLUSION AND ORDER

Based on the forgoing, Plaintiff Anne Heiting’s motion for class certification is DENIED. 

The Judicial Assistant shall give notice to Plaintiff, and Plaintiff is ordered to file proof of service of the instant order on all other parties within 5 days.

DATED:  May 15, 2025                                                         ___________________________

                                                                                          Elaine Lu

                                                                                          Judge of the Superior Court