Judge: Gail Killefer, Case: 23STCV16758, Date: 2023-11-21 Tentative Ruling
Case Number: 23STCV16758 Hearing Date: November 21, 2023 Dept: 37
HEARING DATE: Tuesday, November 21, 2023
CASE NUMBER: 23STCV16758
CASE NAME: Anne Heiting v.
Vitamin Shoppe Industries, LLC
MOVING PARTY: Defendant Vitamin Shoppe
Industries, LLC
OPPOSING PARTY: Plaintiff Anne Heiting
TRIAL DATE: Not Set
PROOF OF SERVICE: OK
PROCEEDING: Demurrer
OPPOSITION: 8 November 2023
REPLY: 14
November 2023
TENTATIVE: Defendant’s demurrer to Plaintiff’s Complaint
is sustained with 30 days leave to amend.
The court sets an OSC Re: Amended Complaint for January 3, 2024, at 8:30
a.m. Defendant to give notice.
Background
On July 18, 2023, Anne Heiting
(“Plaintiff”) filed a Complaint against Vitamin Shoppe Industries, LLC
(“Defendant”) and Does 1 to 25. The operative First Amended Complaint (“FAC”)
alleges single causes of action for Violation of the California Invasion of
Privacy Act (Cal. Pen. Code § 613(a).)
On
September 28, 2023, Defendant filed a demurrer to the FAC. Plaintiff filed an
opposition on November 28, 2023. Defendant filed a reply on November 14, 2023.
The matter is now before the court.
I. Legal Standard
Where pleadings are defective, a
party may raise the defect by way of a demurrer. (Coyne v. Krempels (1950)
36 Cal.2d 257, 262.) A demurrer tests the sufficiency of a pleading, and the
grounds for a demurrer must appear on the face of the pleading or from
judicially noticeable matters.¿ (CCP § 430.30(a); Blank v. Kirwan (1985)
39 Cal.3d 311, 318.) In evaluating a demurrer, the court accepts the
complainant’s properly pled facts as true and ignores contentions, deductions,
and conclusory statements. (Daar v. Yellow Cab Co. (1976) 67 Cal.2d 695,
713; Serrano v. Priest (1971) 5 Cal.3d 584, 591.) Moreover, the court
does not consider whether a plaintiff will be able to prove the allegations or
the possible difficulty in making such proof. (Fisher v. San Pedro Peninsula
Hospital (1989) 214 Cal.App.3d 590, 604.)
Leave to amend must be allowed
where there is a reasonable possibility of successful amendment. (Goodman v.
Kennedy (1976) 18 Cal.3d 335, 348.)¿ The burden is on the complainant to
show the Court that a pleading can be amended successfully. (Id.)
II. Judicial Notice
The court may take judicial notice of “official acts of the
legislative, executive, and judicial departments of the United States and of
any state of the United States,” “[r]ecords of (1) any court of this state or
(2) any court of record of the United States or of any state of the United
States,” and “[f]acts and propositions that are not reasonably subject to
dispute and are capable of immediate and accurate determination by resort to
sources of reasonably indisputable accuracy.” (Evid. Code § 452(c), (d), and
(h).) “Taking judicial notice of a document is not the same as
accepting the truth of its contents or accepting a particular interpretation of
its meaning.” (Joslin v. H.A.S. Ins. Brokerage (1986) 184
Cal.App.3d 369, 374.)
On
reply, Defendant requests judicial notice of the following:
Defendant Vitamin
Shoppe Industries LLC requests this Court take judicial notice of the documents
attached hereto as Exhibits A and B, that is (a) Vitamin Shoppe’s current
Privacy and Security Policy, last updated on May 26, 2023 and (b) Vitamin
Shoppe’s prior Privacy and Security Policy, last updated on January 31, 2020.
(Lopez Decl. Ex. A, B.)
First
Defendant requests judicial notice of Exhibits A and B on reply, thus depriving
Plaintiff of an opportunity to respond to the request. (See Malmstrom v.
Kaiser Aluminum & Chemical Corp. (1986) 187 Cal.App.3d 299, 320
[“Points raised for the first time in a reply brief will not be considered.”].)
Moreover, whether Defendant’s’ privacy policy explicitly states that it does
not authorize service providers to use or disclose personal customer
information, “except as necessary to perform services on our behalf or comply
with legal requirements” remains a disputed issue of fact not subject to
resolution on demurrer. (See Fremont Indemnity Co. v. Fremont General Corp.
(2007) 148 Cal.App.4th 97, 113-114 (“On a demurrer a court's function is
limited to testing the legal sufficiency of the complaint. [Citation.] 'A
demurrer is simply not the appropriate procedure for determining the truth of
disputed facts.’ [Citation.]”].)
Therefore,
the Defendant’s request for judicial notice is denied.
II. Demurrer[1]
The FAC alleges that
while Plaintiff visited Defendant’s website to browse for products, she used a
chat box feature that had a code embedded, called BoldChat, which intercepts consumers'
chat information and stores it for its own purposes. (FAC ¶¶ 8, 9, 10.) Defendant’s website fails
to inform users that their communications are being monitored, collected, and
stored. (FAC ¶¶ 10, 11, 12.) The FAC alleges that Defendant is “aiding,
abetting, and paying third parties like BoldChat” to record and commodify their
communication in a “seemingly innocuous” and “harmless chat box feature”
without obtaining Plaintiff’s express or implied consent.” (FAC ¶¶ 13, 14.)
The
FAC alleges a single cause of action for violation of California Penal Code § 631(a).
Defendants now demurrer to the FAC.
A. Penal Code Section 631(a)
Penal
Code § 631(a) states in relevant part:
Any person [1] 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, or [2] who
willfully and without the consent of all parties to the communication, or in
any unauthorized manner, reads, or attempts to read, or to learn the contents
or meaning of any message, report, or communication while the same is in transit
or passing over any wire, line, or cable, or is being sent from, or received at
any place within this state; or [3] who uses, or attempts to use, in any
manner, or for any purpose, or to communicate in any way, any information so
obtained, or [4] who aids, agrees with, employs, or conspires with any person
or persons to unlawfully do, or permit, or cause to be done any of the acts or
things mentioned above in this section...[is liable].
Penal Code § 631(a) is
part of the California Invasion of Privacy Act (“CIPA”). “CIPA
prohibits any person from using electronic means to ‘learn the contents or
meaning’ of any ‘communication’ ‘without consent’ or in an ‘unauthorized
manner.’” (In re Facebook, Inc. Internet Tracking Litigation (9th
Cir. 2020) 956 F.3d 589, 607 citing Pen. Code, § 631(a).) Liability only
applies to third parties, not parties to the communication. (Ibid; see Warden
v. Kahn (1979) 99 Cal.App.3d 805 [“[S]ection 631 ... has been held to apply
only to eavesdropping by a third party and not to recording by a participant to
a conversation.”])
Defendants
assert that because Vitamin Shoppe is a party to the conversation with
Plaintiff, it cannot be held liable under the first three prongs of section 631
because it cannot eavesdrop on its own chat. Nevertheless, the FAC alleges
Defendants violated the first three prongs of section 631(a), and not the
fourth prong for aiding and abetting eavesdropping. (FAC ¶ 15.) In Byars v. Hot Topic, Inc.
(C.D. Cal., Feb. 14, 2023) 2023 WL
2026994 at *8-9, a federal district court explained that because the website
owner was the intended recipient of the plaintiff’s communication, even if the
website owner used a software product to record and gather data, the website
owner was not liable under the first three prongs of section 631 because the
website owner could not eavesdrop on its own conversations.
Similarly in Pena v. GameStop, Inc. (S.D. Cal., Apr. 27, 2023) 2023 WL 3170047, at *3, the
lead plaintiff and punitive class members alleged that they “visited
Defendant's website, accessed the chat feature within, and ‘communicate[d] with Defendant for various reasons such
as questions about products, order issues, [and] help with the site.’ Compl. ¶¶
24–26 (emphasis added). These allegations essentially plead that Defendant was
a party to the communications in question. Plaintiff then alleges that
Defendant ‘secretly deployed wiretapping software on its website ... [to]
create[ ] secret transcripts of all communications sent through the chat
feature.’ (Compl. ¶¶ 27–28.) However, because Defendant was the party that was
meant to, and did, receive Plaintiff's communications, under the party
exception, any alleged interception of the communications is not actionable.”
Because “[s]ection 631 was aimed at one
aspect of the privacy problem—eavesdropping, or the secret monitoring of
conversations by third parties,” Defendants cannot be held liable for
eavesdropping on their own conversation under the party exception rule to
section 631(a). (Ribas v. Clark (1985) 38 Cal.3d
355, 359; see also Rogers v. Ulrich (1975) 52
Cal.App.3d 894, 899 [“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.”].) Here, if BoldChat uses the parties'
communications for its own purposes, then BoldChat, not Defendant, is liable
under the first three prongs of section 631(a). (FAC ¶ 10.) Defendant was the
intended recipient of the chat messages and cannot be held directly liable for
listening to Plaintiff’s communications even if it used a tool like “BoldChat”
to relay the messages. Therefore, Plaintiff needs to sue the third party,
“BoldChat”, or sue Defendant under the fourth prong of section 631(a) under the
aiding and abetting theory. (See Williams v. What If Holdings,
LLC (N.D. Cal., Dec. 22, 2022) 2022 WL 17869275, at *2.)
Furthermore, to input liability on
Defendant under the fourth prong of section 631(a), Plaintiff needs to allege
that the third party was an eavesdropper and not merely a recorder used to
relay information to Defendant. (See Williams v. What If Holdings,
LLC (N.D. Cal., Dec. 22, 2022) 2022 WL 17869275, at *4; Valenzuela v. Keurig Green Mountain, Inc. (N.D. Cal.,
May 24, 2023) 2023 WL 3707181, at *4.) Plaintiff must also allege that BoldChat
had the “capability” to record the interaction for another purpose and the
purpose was not merely to record and relay the chat data to Defendant. (See Javier v. Assurance IQ, LLC (N.D. Cal. 2023) 649
F.Supp.3d 891, 900.) In the FAC, Plaintiff fails to allege what BoldChat’s
purpose was.
For
the reasons set forth above, Defendant’s demurrer is sustained with leave to
amend.
Conclusion
Defendant’s demurrer to
Plaintiff’s Complaint is sustained with leave to amend.
Plaintiff is granted 30 days leave
to amend.
Defendant to give notice.