Judge: Gail Killefer, Case: 24STCV14650, Date: 2024-10-09 Tentative Ruling

Case Number: 24STCV14650    Hearing Date: October 9, 2024    Dept: 37

HEARING DATE:                 Wednesday, October 9, 2024

CASE NUMBER:                   24STCV14650

CASE NAME:                        Silvia Garcia, et al. vs. Lehmans Hardware, Inc.

MOVING PARTY:                 Defendant Lehmans Hardware, Inc.

OPPOSING PARTY:             Plaintiffs Silvia Garcia, Jose Jesus Licea, and Miguel Esparza

TRIAL DATE:                        Not Set

PROOF OF SERVICE:           OK

PROCEEDING:                      Demurrer with Motion to Stike

OPPOSITION:                        25 September 2024

REPLY:                                  2 October 2024

TENTATIVE:                         Defendant’s demurrer is sustained with leave to amend. Plaintiff is granted 10 days leave to amend. The court sets a Non-Appearance  OSC RE: Filing of Amended Complaint for October 31, 2024, at 8:30 a.m. The Case Management Conference on October 18, 2024, is advanced to today and continued to December 4, 2024, at 8:30 a.m.  Defendant to give notice.

Background

On October 9, 2024, Silvia Garcia, Jose Jesus Licea and Miguel Esparza (“Plaintiffs”) filed a Complaint against Lehmans Hardware, Inc. (“Defendant”) for violating the California Invasion of Privacy Act (“CIPA”).

Defendant now demurs to the Complaint. Plaintiffs oppose the demurrer. The matter is now before the court.

request for JUDICIAL notice

The Court may take judicial notice of records of any court of record of the United States. (Evid. Code, § 452(d)(2).) However, the court may only judicially notice the existence of the record, not that its contents are the truth. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565.) 

Plaintiffs ask the court to take judicial notice of the following:

1)     Exhibit 1: A copy of the Order Denying Defendant’s Motion to Dismiss Plaintiff’s First Amended Class Action Complaint filed on October 17, 2023 in Licea v. Genesco, Inc., No. 3:22-cv-01567-JO-KSC, Doc. 31 at 1:20-26 (S.D. Cal. Oct. 17, 2023) (Ohta, J.).

2)     Exhibit 2: A copy of the Certified Copy of Reporter’s Transcript of Proceedings of Motion Hearing on Oct. 13, 2023 in Licea v. Genesco, Inc., No. 3:22-cv-01567-JO-KSC (S.D. Cal. Oct. 17, 2023) (Ohta, J.).

3)     Exhibit 3: Minute Order and Tentative Rulings filed on July 19, 2023 in Licea v. Malwarebytes Inc., No. CIV SB 2224245 (Cal. Super. Ct. San Bernardino Cty. July 19, 2023) (Cohn, J.).

4)     Exhibit 4: A copy of the Minute Order filed on July 24, 2023 in Licea v. The Men’s Wearhouse, LLC, No. 23STCV02964 (Cal. Super. Ct., Los Angeles County July 24, 2023) (Leiter, J.).

5)     Exhibit 5: A copy of the Minute Order filed on August 11, 2023 in Licea v. Jockey Int’l, Inc., No. 23STCV02906 (Cal. Super. Ct., Los Angeles County Aug. 11, 2023) (Richardson, J.).

6)     Exhibit 6: A copy of the Minute Order filed on September 25, 2023 in Licea v. Brooklyn Bedding LLC, No. 23STCV04925 (Cal. Super. Ct., Los Angeles County Sept. 25, 2023) (Crowley, J.).

7)     Exhibit 7: A copy of the Minute Order filed on October 24, 2023 in Esparza v. Urban Outfitters Inc., No. 23STCV08874 (Cal. Super. Ct., Los Angeles County Oct. 24, 2023) (Fujie, J.).

8)     Exhibit 8: A copy of the Order Denying in Part and Granting in Part Defendant’s Motion for Judgment on the Pleadings filed on January 12, 2024, in Gutierrez v. Fibre Glast Developments Corp., LLC, No. 23STCV04470 (Cal. Super. Ct., Los Angeles County Jan. 12, 2024) (Nelson, J.).

9)     Exhibit 9: A copy of the Order Overruling in Part and Sustaining in Part Defendant’s Demurrer Without Leave to Amend filed on January 18, 2024, in Heiting v. Arlo Technologies, Inc., No. 23STCV13511 (Cal. Super. Ct., Los Angeles County Jan. 18, 2024) (Nelson, J.).

10) Exhibit 10: A copy of the Final Rulings/Orders Re: Demurrer to Complaint filed on March 8, 2024 in Cody v. Zwift Inc., No. 23STCV12329 (Cal. Super. Ct., Los Angeles County Mar. 8, 2024) (Palazuelos, J.).

11) Exhibit 11: A copy of the Minute Order filed on April 5, 2024 in Licea v. Books-A-Million Inc., No. 37-2023- 00013708-CU-CR-CTL (Cal. Super. Ct., San Diego County Apr. 5, 2024) (Whitney, J.).

12) Exhibit 12: A copy of the Minute Order filed on April 15, 2024 in Licea v. Rack Room Shoes, Inc., No. 23STCV22458 (Cal. Super. Ct., Los Angeles County Apr. 15, 2024) (Richardson, J.).

13) Exhibit 13: A copy of the Minute Order filed on April 15, 2024 in Licea v. Rack Room Shoes, Inc., No. 23STCV22458 (Cal. Super. Ct., Los Angeles County Apr. 15, 2024) (Richardson, J.).

14) Exhibit 14: A copy of the Order in Part Overruling and in Part Sustaining Without Leave to Amend Defendant’s Demurrer filed on April 16, 2024 in Licea v. Levi Strauss & Co., No. 23STCV17313 (Cal. Super. Ct., Los Angeles County Apr. 16, 2024) (Riff, J.).

15) Exhibit 15: A copy of the Minute Order filed on April 22, 2024 in Licea v. Glassparency Products, Inc., No. 22STCV40411 (Cal. Super. Ct., Los Angeles County Apr. 22, 2024) (Duffy-Lewis, J.).

16) Exhibit 16: A copy of the Minute Order filed on May 23, 2024 in Licea v. The McClatchy Co., LLC, No. 23STCV14444 (Cal. Super. Ct. Los Angeles County May 23, 2024) (Mohr, J.)

17) Exhibit 17: A copy of the Order Re: Defendant’s Demurrer to Complaint filed on May 30, 2024 in Heiting v. Valvoline, Inc., et al., No. 23STCV22583 (Cal. Super. Ct. Los Angeles County May 30, 2024) (Broadbelt, J.).

18) Exhibit 18: A copy of the Minute Order filed on June 3, 2024 in Heiting v. I Am Beyond LLC, No. 23STCV27729 (Cal. Super. Ct., Los Angeles County June 3, 2024) (Kuhl, J.).

19) Exhibit 19: A copy of the Order Re Demurrer filed on June 12, 2024 in Esparza v. Lebo Automotive, Inc., No. 23STCV26395 (Cal. Super. Ct. Los Angeles County June 12, 2024) (Seigle, J.).

20) Exhibit 20: A copy of the Final Order Re: Defendant Doximity Inc.’s Motion for Judgment on the Pleadings filed on July 10, 2024 in Garcia v. Doximity Inc., No. 23STCV09965 (Cal. Super. Ct. Los Angeles County July 10, 2024) (Lu, J.).

21) Exhibit 21: A copy of the Minute Order filed on July 29, 2024 in Esparza v. Advanced Systems Technology-Sprayer Depot, LLC, No. 24STCV06633 (Cal. Super. Ct. Los Angeles County July 29, 2024) (Takasugi, J.).

22) Exhibit 22: A copy of the Final Ruling and Order Re: Defendant Harper Collins Publishers LLC’s Demurrer to the Complaint filed on July 29, 2024 in Heiting v. Harpercollins Publishers LLC, No. 23STCV10382 (Cal. Super. Ct. Los Angeles County July 29, 2024) (Lu, J.).

23) Exhibit 23: A copy of the Order Re Demurrer and Motion to Strike filed on September 5, 2024 in Licea v. F21 Opco LLC, No. 23STCV26837 (Cal. Super. Ct. Los Angeles County Sept. 5, 2024) (Seigle, J.).

24) Exhibit 24: A copy of the Complaint filed on August 24, 2022 in People v. Sephora USA, Inc., No. CGC-22-601380 (Cal. Super. Ct. S.F. County filed Aug. 24, 2022).

25) Exhibit 25: A copy of the Final Judgment and Permanent Injunction filed on August 24, 2022 in People v. Sephora USA, Inc., No. CGC-22-601380 (Cal. Super. Ct. S.F. County Aug. 24, 2022) (Ulmer, J.)

26) Exhibit 26: A copy of the First Amended Class Action Complaint filed on November 2, 2023 in Balletto, et al. v. American Honda Motor Co., Inc., No. 4:23-cv-01017-JSWC (N.D. Cal. Nov. 2, 2023).

Plaintiffs seek judicial notice of trial court rulings in other cases which are unpublished rulings with no precedential value in this court and the opinions are submitted not as evidence but are being cited as precedent. Such citation is beyond the scope of judicial notice and is legally improper. (Budrow v. Dave & Buster’s of California, Inc. (2009) 171 Cal.App.4th 875, 884-885.) “A written trial court ruling in another case has no precedential value in this court [citation], which is also the rule in federal courts.” (Id., at pp. 884-885.)

For this reason, the court declines to take judicial notice of the trial court decisions in Plaintiff’s request for judicial notice.

Demurrer[1]

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. (Ibid.)

II.        Discussion

The Complaint alleges that Defendant violated the CIPA by paying “a third party that has no corporate affiliation with Defendant to eavesdrop on all such conversation” that took place on the chat feature of Defendant’s website, www.lehmans.com. (Compl., ¶¶ 1, 9.) “[W]henever a consumer chats via Defendant’s Website, the chat is routed through The Third Party’s servers so they may simultaneously collect a transcript of that chat, along with other user data, in real time and save it for later access.” (Id., ¶ 10.)

“Defendant, The Third Party, and Meta – profit from secretly exploiting the chat data through targeted social media advertising[.]” (Compl., ¶ 17.) “The Third Party does more than merely provide a storage function for Website users’ chat communications with Defendant. It is more than the proverbial “tape-recorder” in the hand of Defendant. Instead, The Third Party uses its record of Website users’ interaction with Defendant’s chat feature for data analytics and marketing/advertising to consumers[.]” (Id., ¶ 18.) “The Third Party’s exploitation, monetization, use of, and interaction with the data it gathers through the chat feature on Defendant’s Website in real time makes it a third-party interceptor and eavesdropper known to and enabled by Defendant under CIPA, rather than a mere extension or tool of Defendant and/or party to the communication with Website visitors.” (Id., ¶ 19.) 

The Complaint alleges that Defendant violated “the third prong” of Penal Code section 631(a) by “aiding, abetting, and conspiring” to allow a third party to intercept, eavesdrop upon, learn, share, and monetize the contents of Defendant’s chat conversations.” (Compl., ¶ 28.) “Defendant also aided and abetted a third party to eavesdrop upon such conversations during transmission and in real time. “ (Id., ¶ 31.) Plaintiffs did not know or consent to such conduct. (Id., ¶¶ 25, 26, 31.)

Defendant now demurs to the Complaint.

A.        Plaintiffs Fail to Allege that the Third Party Violated the CIPA and that Defendant is subject to Derivative Liability for the Third Party’s Violations

Penal Code section 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.”]) 

Penal Code § 631(a), states in the 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]. 

“The California Supreme Court has interpreted § 631(a) to contain three operative clauses, which cover three distinct and mutually independent patterns of conduct: (1) ‘intentional wiretapping,’ (2) ‘willfully 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 two previous activities.’ (Martin v. Sephora USA, Inc. (E.D. Cal., Mar. 30, 2023, No. 1:22-CV-01355-JLT-SAB) 2023 WL 2717636, at p. *6 (Martin) citing Tavernetti v. Superior Court (1978) 22 Cal.3d 187, 192.) “Section 631(a) also provides for liability for third party violations of the statute by containing an aiding and abetting provision, which imposes liability on a defendant 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 [in Section 631(a)].’ [Citation.]” (Heiting v. Taro Pharmaceuticals USA, Inc. (C.D. Cal., Apr. 2, 2024, No. 2:23-CV-08002-SPG-E) 2024 WL 1626114, at p. *4.)

The Complaint alleges that Defendant violated the third clause or prong of Section 631 (Compl., ¶ 28) but because Defendant is a party to the communication it cannot held liable for violating the third prong, and can only be held liable for aiding and abetting under the fourth prong. “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.) Therefore, Defendant as a party to the conversation cannot eavesdrop on its own conversations and cannot be liable for violating the first three prongs of Section 631. Consequently, Defendant’s liability can only arise under the aiding and abetting provision for violations of the first, second, or third prongs of Section 631 by a third party.

While the Complaint alleges that a third party was listening to Defendant’s conversations, the Complaint is devoid of any allegations stating which prong of Section 631 the third party violated. Statutory-based causes of action must be pled with reasonable particularity. (See Soliz v. Williams (1999) 74 Cal.App.4th 577, 585.) Therefore, the Complaint must state what specific prong of Section 631 the third party violated to support the allegation that Defendant aided and abetted that third in its violation of Section 631.

Defendant further asserts that for the third party to be liable under the third prong of Section 631, Plaintiffs must allege that the third party violated the first or second prong of Section 631. “A finding of a violation under the third clause of § 631(a) is contingent on a finding of a violation of the first or second clause of § 631(a).” (Martin, supra, (E.D. Cal., Mar. 30, 2023, No. 1:22-CV-01355-JLT-SAB) 2023 WL 2717636, at p. *11.) Yet, the Complaint is devoid of any such allegations.

Without the third party being liable for Section 631 violations, the Defendant cannot be subject to derivative liability. Therefore, the demurrer is sustained with leave to amend. 

Conclusion

Defendant’s demurrer is sustained with leave to amend. Plaintiff is granted 10 days leave to

amend. The court sets a Non-Appearance OSC RE: Filing of Amended Complaint for October

31, 2024, at 8:30 a.m. The Case Management Conference on October 18, 2024, is advanced to

today and continued to December 4, 2024, at 8:30 a.m.  Defendant to give notice.