Judge Holly J. Fujie, Case Number: 24STCV03898, Date: 2024-10-07 Tentative Ruling

Plaintiff filed a complaint (“Complaint”) arising from the alleged interception of Plaintiff’s chats on Defendant’s website, asserting a cause of action for violations of the California Invasion of Privacy Act, Cal. Pen. Code § 631 (“CIPA”).

On July 2, 2024, Defendant filed the instant Demurrer to Plaintiff’s Complaint (the “Demurrer”). Plaintiff filed an opposition on September 23 2024, and Defendant filed a reply on September 30, 2024.

Plaintiff requests judicial notice of various documents consisting of unpublished court orders in a federal court action and in other superior court actions, pleadings and transcripts filed in other court actions.

The Court takes judicial notice of the existence of court and state records. (Evid. Code, § 452(c),(d)). The Court, however, does not take judicial notice of the truth of assertions within. (Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375. The Court also notes that citations or reliance on unpublished superior court cases is improper. (Rittiman v. Public Utilities Com. (2022) 80 Cal.App.5th 1018, 1043, fn. 18.)

Based on Defendant’s counsel’s representation regarding meet and confer effort, the Court will proceed to rule on the merits.

A demurrer tests the sufficiency of a complaint as a matter of law. (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.) The court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. (Id.) In testing the sufficiency of the complaint, the court must assume the truth of (1) the properly pleaded factual allegations; (2) facts that can be reasonably inferred from those expressly pleaded; and (3)

judicially noticed matters. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer tests the

pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court

(1984) 153 Cal. App. 3d 902, 905.) Accordingly, “[w]hether the plaintiff will be able to prove

the pleaded facts is irrelevant to ruling upon the demurrer.” (Stevens v. Superior Court (1986)

180 Cal.App.3d 605, 609-10.) A general demurrer may be taken to a complaint where “[t]he

pleading does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc. §

430.10(e).) Although Courts construe pleadings liberally, sufficient facts must be alleged to

support the allegations plead to survive a demurrer. (Rakestraw v. California Physicians' Serv.

Where a demurrer is sustained, 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 plaintiff to show the court that a pleading can be amended successfully. (Id.) If

there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to

sustain a demurrer without leave to amend. (Youngman v. Nevada Irrigation Dist. (1969) 70

Initially, the Court notes that while the parties rely on numerous conflicting decisions of federal district courts in support of their respective arguments, such cases are not binding on this Court although they are entitled to great weight. (People v. Bocanegra (2023) 90 Cal.App.5th 1236, 1255, fn. 7.)

California Penal Code section 631 has been interpreted by California courts as containing three different clauses which cover three distinct and mutually independent patterns of conduct. (Valenzuela v. Nationwide Mutual Insurance Co., 2023 WL 5266033 at *3 (C.D. Cal. August 14,

2023).) The three patterns of conduct that Section 631 prohibits are: (1) intentional wiretapping;

(2) 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. (Id.) In addition to these three clauses, section 631 contains an aiding provision which imposes liability on anyone who aids, agrees with, employs, or conspires with any person or persons in violating the three clauses above. (Id.)

The second clause of Penal Code section 631 is violated where a party 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, cable, or is being sent from, or received at any place within this state. (Id.)

A party to a conversation cannot logically be liable for eavesdropping on a conversation, so a party to a communication is not liable for learning the contents of that communication. (Id. at

*4.) When a party intends to communicate with a second party, and a computer code automatically directs the communication to an additional third party, the third party is not construed as a party to the communication, so the party exception does not shield the third party. (Id.) Where it is alleged that a third party has violated California Penal Code section 631, it follows that the entity who engaged such third party is liable for a violation under California Penal Code section 631. (Id.) The protections of Penal Code section 631 extend explicitly to the beginnings and ends of communications, so there is no reason to consider the first part of an electronic communication beyond the statute’s reach. (Revitch v. New Moosejaw, LLC, 2019 WL 5485330 at *2 (N.D. Cal. October 29, 2019).)

The Court finds that a discussion in Valenzuela is instructive. In Valenzuela, plaintiff utilized a chat feature on defendant insurance company’s website to communicate with defendant;

however, unbeknownst to plaintiff, defendant employed a third-party company to embed code into the website, which allowed the third-party company to monitor and store chat conversations. No consent was obtained to share the chat conversations. In Valenzuela, plaintiff brought a claim for violation of California Penal Code section 631 against defendant insurance company but not the third-party. A motion to dismiss for failure to state a claim was filed by defendant as to the Section 631 claim.

In holding that plaintiff stated a claim against defendant insurance company for aiding a violation of Penal Code section 631, the Valenzuela court stated that plaintiff alleged that: (1) the

third-party used the data it collected from the chats; and (2) defendant insurance company contracted with the third-party in order to benefit from its data harvesting for financial gain. The

Valenzuela court opined that the facts alleged were sufficient to show that the third-party violated the third clause of Penal Code section 631. The Valenzuela court further held that plaintiff had sufficiently alleged that defendant insurance company aided the actions of the third-party because it engaged the third-party for the purpose of intercepting messages for financial gain. Additionally, the Valenzuela court opined that plaintiff alleged defendant’s facilitation of the embedding of the third-party code into defendant’s website. The Valenzuela court therefore found that the allegations were sufficient to state a claim for aiding a violation of California Penal Code section 631.

Here, the Complaint alleges that: (1) Defendant allowed a third-party called Drift to covertly embed code into Defendant’s chat feature on Defendant’s website (Complaint, ¶ 10); (2) the chat is routed through Drift’s servers so they may simultaneously collect a transcript of that chat, along with other user data (Id.); (3) Defendant did not inform Plaintiff that Defendant was secretly allowing, aiding, agreeing with, employing or conspiring with Drift to intercept and eavesdrop on the conversations during transmission (Id., ¶¶ 29, 31, 34, 35); (4) Drift exploited, monetized, and used the data it gathered through the chat feature in real time (Id., ¶ 27); and (5) Plaintiff alleges that he used his smart phone to visit Defendant’s website. (Id., ¶ 32.)

The Court finds that the Complaint sufficiently alleges facts showing that Drift violated CIPA. Plaintiff has also stated facts alleging that Defendant aided the violations of Drift. The facts here are akin to those in Valenzuela and Plaintiff has thus stated a valid cause of action.

Accordingly, the Demurrer is OVERRULED as Plaintiff has stated a cause of action for violation of California Penal Code section 631.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court