Judge: Gail Killefer, Case: 24STCV18924, Date: 2025-04-17 Tentative Ruling

Case Number: 24STCV18924    Hearing Date: April 17, 2025    Dept: 37

HEARING DATE:                 Thursday, April 20, 2025

CASE NUMBER:                   24STCV18924

CASE NAME:                        Monica Sanchez v. Letter Four

MOVING PARTY:                 Defendant Letter Four, Inc.

OPPOSING PARTY:             Plaintiff Monica Sanchez

TRIAL DATE:                        Not set.

PROOF OF SERVICE:           OK

PROCEEDING:                      Demurrer with Motion to Strike FAC

OPPOSITION:                        19 March 2025

REPLY:                                  26 March 2025

TENTATIVE:                         Defendant’s demurrer is sustained. At the hearing, the court will decide if leave to amend should be granted. The motion to strike is denied as moot.

Background

On July 30, 2024, Monica Sanchez (“Plaintiff”) filed a Complaint against Letter Four, Inc. (“Defendant”). The operative First Amended Complaint (“FAC”) alleges single cause of action for Violation of the California Invasion of Privacy Act (“CIPA”) under Pen. Code § 638.51(a).

On March 5, 2025, Defendant filed a demurrer and motion to strike the FAC. Plaintiff opposes both Motions. The matter is now before the court.

LEGAL STANDARDS

A.        Demurrer 

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (CCP, § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)¿“To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.”¿(C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)¿For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded.¿ (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.)¿A demurrer “does not admit contentions, deductions or conclusions of fact or law.”¿(Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)¿¿ 

B.        Motion to Strike 

¿Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (CCP, § 435(b)(1); CRC, rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP, § 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)¿¿¿¿ 

C.        Leave to Amend 

“Where the defect raised by a motion to strike or by demurrer is reasonably capable of cure, leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question.” (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)¿¿¿ 

Demurrer[1]

I.         Request for 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, subds. (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.)

Defendant requests judicial notice of the following:

Exhibit 1: Order on Demurrer in Jose Licea vs Hickory Farms LLC, Case No. 23STCV26148,   Los Angeles County Superior Court, dated March 13, 2024.

Exhibit 2: Order Granting Motion to Remand, Monica Sanchez v. Marriott International, Inc., Case No. 2:24-cv-04882-SB-AGR, USDC Central District of California, dated July 31, 2024.

Exhibit 3: List of 88 cases that Monica Sanchez has filed in the Los Angeles County Superior Court within the past year (downloaded from the court website on December 1, 2024, and edited to just show the name and case number)

Exhibit 4: List of 35 cases that Jose Licea has filed in the Los Angeles County Superior Court since February 2023 (downloaded from the court website on December 1, 2024, and edited to just show the name and case number)

Exhibit 5: Arisha Byars v. Hot Topic, Inc. 2023 WL 2026994 (USDC Central California)

Exhibit 6: List of 19 cases that Arisha Byars has filed in Los Angeles County

Exhibit 7: List of 9 cases that Arisha Byars has filed in the USDC Central District of California

“‘Judicial notice is the recognition and acceptance by the court, for use by the trier of fact or by the court, of the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter.’” (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882.)

Exhibits 1, 2, and 5, which are trial court rulings in state and federal courts, that have no precedential value, and are submitted the Defendant not as evidence but as precedent. This is beyond the scope of judicial notice and is legally improper. (See Bolanos v. Superior Court (2008) 169 Cal.App.4th 744, 761; Budrow v. Dave & Buster's of California, Inc. (2009) 171 Cal.App.4th 875, 884–885.)

The court also fails to see the relevance of Exhibits 3, 4, 6, and 7 to the Motions before the court. Although a court may judicially notice a variety of matters (Evid. Code, §¿450 et seq.), only relevant material may be noticed.” (American Cemwood Corp. v. American Home Assurance Co. (2001) 87 Cal.App.4th 431, 441, fn. 7.) 

Based on the above, the request for judicial notice is denied.

Plaintiff requests judicial notice of the following:

Exhibit 1: Senate Committee on Public Safety Bill Analysis of Apr. 12, 2010 for Senate Bill No. 1428 (2009-2010 Regular Session).

Exhibit 2: Assembly Committee on Public Safety Bill Analysis of June 21, 2010 for Senate Bill No. 1428 (2009-2010 Regular Session).

Exhibit 3: First Amended Class Action Complaint filed on November 21, 2022 in Greenley v. Kochava, Inc., No. 3:22-cv-01327-BAS-AHG (S.D. Cal.)

Plaintiff’s request for judicial notice is granted as to Exhibits 1 and 2, but not as to Exhibit 3 as it is not the proper subject for judicial notice.

II.        Discussion

A.        Summary of Allegations in FAC

Plaintiff is “a consumer privacy advocate who works as a ‘tester’ to ensure that companies abide by the privacy obligations imposed by California law.” (FAC, ¶ 4.) Defendant is an interior design and construction firm that owns and operates a website at https://www.letterfour.com/ (the “Website”). (Id. Intro.,  ¶ 5.)

The FAC asserts that Defendant’s Website obtains the IP address of its users, which “is a unique identifier for a device, which is expressed as four sets of numbers separated by periods (e.g., 192.168.123.132). The first two sets of numbers indicate what network the device is on (e.g., 192.168), and the second two sets of numbers identify the specific device (e.g., 123.132).” (FAC, ¶ 34.) “[T]he IP address enables a device to communicate with another device—such as a computer’s browser communicating with a server—and the IP address contains the device’s geographical location.” (Id. ¶ 35.) “Through an IP address, the specific device’s state, city, and zip code can be determined.” (Id. ¶ 36.)

The FAC asserts that Defendant installed a pen register or trap and trace device (collectively “PR/TT”) “on the user’s browser for marketing and analytics purposes.” (FAC, ¶¶ 13, 42.) “Defendant uses the PR/TT to collect the IP address of visitors to the Website, including the IP address of Plaintiff.” (Id. ¶ 56.) “When Plaintiff visited the Website, the Website’s code—as programmed by Defendant— caused the PR/TT beacon to be installed on Plaintiff’s browsers. Defendant and the PR/TT beacon’s developer then used the PR/TT beacon to collect Plaintiff’s IP address.” (Id. ¶ 76.) Defendant installed and allowed “third party spyware software to exist and operate on its Website” that allows for the “deanonymizing and tracking visitors of the Website.” (Id. ¶ 88.) Defendant did not obtain Plaintiff’s consent to use the “PR/TT beacon”  nor obtain a court order to install or use the PR/TT beacon (Id. ¶¶  59, 60.)

“Plaintiff’s investigation of the Website via a computer expert has determined that visitor data is harvested and shared with third-party services immediately upon webpage loading, preceding any opportunity for visitors to consent to or decline the Website’s privacy policy or cookie banner.” (FAC, ¶ 60.) “The collection of Plaintiff’s personally identifying non-anonymized information through Defendant’s installation and use of the PR/TT beacon constitutes an invasion of privacy.” (Id. ¶ 71.) Defendant invaded Plaintiff’s privacy by violating Ped. Code § 638.51. (Id. ¶¶ 81, 93.)

The FAC asserts that Defendants violated Pen. Code § 638.51(a) which states:

(a) Except as provided in subdivision (b), a person may not install or use a pen register or a trap and trace device without first obtaining a court order pursuant to Section 638.52 or 638.53.

Pen. Code § 638.50(b) defines a “pen register as:

[A] device or process that records or decodes dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted, but not the contents of a communication. “Pen register” does not include a device or process used by a provider or customer of a wire or electronic communication service for billing, or recording as an incident to billing, for communications services provided by such provider, or a device or process used by a provider or customer of a wire communication service for cost accounting or other similar purposes in the ordinary course of its business.

Pen. Code § 638.50(c) defines a “trap and trace device” as:

[A] device or process that captures the incoming electronic or other impulses that identify the originating number or other dialing, routing, addressing, or signaling information reasonably likely to identify the source of a wire or electronic communication, but not the contents of a communication.

Defendant now demurs to the FAC on the following grounds: (1) Pen. Code § 638.51 only applies to telephonic communication; (2) Plaintiff lacks standing because she does not have an “actual controversy” but instead is trying to generate an impermissible advisory opinion; and (3) the Complaint, is uncertain, ambiguous, and unintelligible.

B.        Pen. Code § 638.51 Applies Only to Wire or Electronic Communications

As Defined by Pen. Code § 629.51

The court acknowledges there is a split in authority in federal district courts as to whether CIPA applies only to telephonic communications or if it extends to electronic communications, including websites and software. (See Greenley v. Kochava, Inc. (S.D. Cal. 2023) 684 F.Supp.3d 1024, Moody v. C2 Educational Systems Inc. (C.D. Cal. 2024) 742 F.Supp.3d 1072, 1076 [“Plaintiff's allegations that the TikTok Software is embedded in the Website and collects information from visitors plausibly fall within the scope of §§ 638.50 and 638.51.”]; ANNE HEITING, individually and on behalf of all others similarly situated Plaintiff, v. FKA DISTRIBUTING CO., DOES 1 through 25, inclusive, Defendants. (C.D. Cal., Feb. 3, 2025, No. 2:24-CV-07314-HDV-AGR) 2025 WL 736594, at *3 [The court concluded the challenged software does fall within the ambit of section 638.50(c)]; Shah v. Fandom, Inc. (N.D. Cal., Oct. 21, 2024, No. 24-CV-01062-RFL) 2024 WL 4539577, at *4.)

No California appellate case has found that violations of Civ. Code § 638.51 is limited to only telephonic communications. However, the court is guided by the plain meaning of the words of the statute. (Perez v. Oakdale Irrigation District (2023) 98 Cal.App.5th 793, 797.) In reading the statutory definitions of “wire communication” and electronic communication,” the court is persuaded that the collection and taking of IP addresses does not fit the definition of a “pen register” or a “trap and trace device.”

Pen. Code § 629.51(a)(1) defines a “Wire communication” as:

[Any] aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception (including the use of a like connection in a switching station), furnished or operated by any person engaged in providing or operating these facilities for the transmission of communications.

(Id. [bold added].)

Pen. Code § 629.51(a)(4) defines “Aural transfer” as “ a transfer containing the human voice at any point between and including the point of origin and the point of reception.” Accordingly, for the Website or IP address to be a wire communication, it needs to contain a human voice. Because the Website and IP address do not contain a human voice, they are not a wire communication under CIPA.

Pen. Code § 629.51(a)(1) defines ““Electronic communication” as:

[A]ny transfer of signs, signals, writings, images, sounds, data, or intelligence of any nature in whole or in part by a wire, radio, electromagnetic, photoelectric, or photo-optical system, but does not include any of the following:

(A) Any wire communication defined in paragraph (1).

(B) Any communication made through a tone-only paging device.

(C) Any communication from a tracking device.

(Id. [bold added].)

A “tracking device” is defined as “an electronic or mechanical device that permits the tracking of the movement of a person or object.” (Pen. Code § 629.51(a)(23).) The FAC asserts that the IP address is a tracking software capable of being used to “track and surveil users.” (FAC, ¶ 20, see also ¶¶ 21, 29, 30, 53, 58, 59, 62, 77, 88, 97, 102.)

Accordingly, because the IP address is defined as a tracking device, it cannot be a wire communication. Defendant’s opposition states that the spyware used by Defendant is not a “tracking device” as defined by Pen. Code § 637.7 which defines “electronic tracking device” as “ any device attached to a vehicle or other movable thing that reveals its location or movement by the transmission of electronic signals.” However, Plaintiff fails to show that the definition of “tracking device” under Pen. Code § 629.51(a)(23) was intended to have the same definition as “electronic tracking device” under “Pen. Code section 637.7 or that the latter definition controls over the former.

Lastly, the FAC does not assert that the “electronic communication” at issue is a software, and instead asserts that communication is a “PR/TT beacon.” The term “PR/TT beacon” is not defined in the FAC and the FAC is uncertain, ambiguous, and unintelligible as to what is a “PR/TT beacon.”

Therefore, the demurrer due to the inapplicability of CIPA to the FAC is sustained.

C.        Plaintiff Has Standing Because She Alleges An Actual Injury

Even if Plaintiff could amend the pleadings to show that the third-party software used to deanonymize and track is a “wire or electronic communication,” Plaintiff has failed to show she has standing to bring this action. Pen. Code § 637.2(a) allows for a private right of action to enforce CIPA:

(a) Any person who has been injured by a violation of this chapter may bring an action against the person who committed the violation for the greater of the following amounts:

(1) Five thousand dollars ($5,000) per violation.

(2) Three times the amount of actual damages, if any, sustained by the plaintiff.

(b) Any person may . . .  bring an action to enjoin and restrain any violation of this chapter, and may in the same action seek damages as provided by subdivision (a).

(c) It is not a necessary prerequisite to an action pursuant to this section that the plaintiff has suffered, or be threatened with, actual damages.

Therefore, Plaintiff may bring this action if she has suffered an “injury” due to the violation of Pen. Code § 638.51(a). Defendant asserts that Plaintiff has not suffered an injury because Plaintiff has only alleged that she accessed Defendant’s website “via an Internet-connected computer.” (FAC, ¶ 74.) Accordingly, it is unclear if Plaintiff used her own personal computer or a computer located in her home address, such that the IP address can be connected to Plaintiff. (Motion at p. 5:5-9.) “Indeed, everything about this Plaintiff and her admitted serial litigation hobby suggests that she absolutely has not used her own computer.” (Id. at p. 5:9-10.)

In Limon v. Circle K Stores Inc. (2022) 84 Cal.App.5th 671, the appellate court acknowledged that standing in California required that the plaintiff be “beneficially interested” in the action. “[W]e conclude, as a general matter, to have standing to pursue a claim for damages in the courts of California, a plaintiff must be beneficially interested in the claims he is pursuing.” (Id. at p. 700.) Defendant asserts that without an allegation that Plaintiff used her personal computer or accessed the Website from her personal residence, she had no privacy interest in her IP address.

Plaintiff points out that in 2018 the California Consumer Privacy Act was passed and Civ. Code section 1798.40(v)(1) defined “Personal information” as “information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household”, including, “ online identifier, Internet Protocol address . . . or other similar identifiers.” However, the fact that IP Addresses are reasonably capable of being linked to a particular person, does not by itself establish that Plaintiff has a privacy interest in the IP address she used to access the Website.

An IP address standing alone, however, is nothing more than a string of “ ‘four sets of numbers separated by periods.’ ” [Citation.] “ ‘IP addresses function much like Social Security numbers or telephone numbers: each IP address is unique and corresponds to a specific entity connected to the Internet.’ ” [Citation.] But that entity cannot be identified without corresponding information from the Internet Service Provider responsible for assigning the IP address in question.

(Kinda v. Carpenter (2016) 247 Cal.App.4th 1268, 1280.)

The FAC asserts that “[m]uch like a telephone number, an IP address is a unique numerical code associated with a specific internet-connected device.” (FAC, ¶ 37.) Accordingly, the device used to generate the IP address matters when determining whether Plaintiff had a beneficial interest in the IP address that was deanonymized and tracked by Defendant’s use of third party software. (Id. ¶ 88.) If an IP address is like a telephone number, and the Plaintiff used a work phone or public telephone to communicate with Defendant, then what privacy interest does Plaintiff have in the telephone number?

In other words, does Plaintiff have a privacy interest in the IP address that is generated from a work computer or a computer accessed in a public space? The court  is persuaded that if Plaintiff did not use her personal device or used a personal device in a public setting, then Plaintiff did not have a privacy interest in the IP address and the corresponding information that deanonymized and tracked because Plaintiff could not be personally identified by the information disclosed and was not injured by Defendant’s violation. (See Norman-Bloodsaw v. Lawrence Berkeley Laboratory (9th Cir. 1998) 135 F.3d 1260, 1271, fn. 17 [“ Under California law, a legally recognizable privacy interest arises from the sort of information revealed[.]”].)

While Civ. Code § 1798.40(v)(1) defines “Personal information,” it does not define what constitutes an injury under Pen. Code § 637.2(a). The court agrees that the disclosure of a user's IP address, without more, is not sufficient to confer standing on Plaintiff under Pen. Code § 637.2(a). For Plaintiff to have standing, she must show she had an expectation of privacy in the IP address that was used to access Defendant’s software.  This requires Plaintiff to allege facts showing that she was injured by the deanonymizing and tracking of her IP address due to the type of personal information that was disclosed to third parties. (See Rodriguez v. Autotrader.com, Inc. (C.D. Cal., Apr. 4, 2025, No. 2:24-CV-08735-RGK-JC) 2025 WL 1085787, at *1 [finding testers have no reasonable expectation of privacy]; Byars v. Sterling Jewelers, Inc. (C.D. Cal., Apr. 5, 2023, No. 5:22-CV-01456-SB-SP) 2023 WL 2996686, at *3 [“Plaintiff does not allege that she disclosed any sensitive information to Defendant, much less identify any specific personal information she disclosed that implicates a protectable privacy interest. She therefore has not identified any harm to her privacy.”].)

“Analogously, e-mail and Internet users have no expectation of privacy in the to/from addresses of their messages or the IP addresses of the websites they visit because they should know that this information is provided to and used by Internet service providers for the specific purpose of directing the routing of information.” (U.S. v. Forrester (9th Cir. 2008) 512 F.3d 500, 510; see also Brown v. Google LLC (N.D. Cal. 2023) 685 F.Supp.3d 909, 941 [no exception of privacy in IP address]; Heeger v. Facebook, Inc. (N.D. Cal. 2020) 509 F.Supp.3d 1182, 1189 [accord].)

Accordingly, what matters for purposes of standing under Pen. Code § 637.2(a) is the injury suffered by the Plaintiff as it relates to the personal information that was disclosed from the deanonymizing and tracking of the IP address the Plaintiff used to access Defendant’s website.

Accordingly, the demurrer due to lack of standing is sustained.

Plaintiff’s opposition fails to show how the FAC is capable of successful amendment. After the hearing, the court will decide whether leave to amend should be granted. As the demurrer has been sustained, the motion to strike is denied as moot.

Conclusion

Defendant’s demurrer is sustained. At the hearing, the court will decide if leave to amend should be granted. The motion to strike is denied as moot.