Judge: Jon R. Takasugi, Case: 24STCV14117, Date: 2024-11-25 Tentative Ruling

Case Number: 24STCV14117    Hearing Date: November 25, 2024    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Defendant’s demurrer is SUSTAINED, WITH 20 DAYS LEAVE TO AMEND.

            On 6/5/2024, Plaintiff Gurmit Deol (Plaintiff) filed suit against Safelite Group, Inc., alleging violations of the California Trap and Trace Law.

            On 8/7/2024, Defendant demurred to Plaintiff’s Complaint.

Discussion

            Defendant argues that Plaintiff has failed to state a claim for violation of California Penal Code section 638.51 for at least four reasons: (1) he does not allege that his data was actually collected; (2) he has not plead use of a pen register or trap and trace device; (3) Safelite is exempted from liability because it is a provider of an electronic communication service; and (4) Plaintiff has not alleged use of the required “device or process” under CIPA.

            After review, the Court agrees.

            As to the first contention, Plaintiff generally alleges that the “TikTok Software gathers device and browser information, geographic information, referral tracking, and URL tracking by running code or ‘scripts’ on the Website to send user details to TikTok.” (Compl. ¶ 13.) He does not allege which, if any, of this information was collected during his visit to the Website. “[A]llegations of what a technology is merely capable of collecting do not equate to sufficient allegations of what that technology actually collected.” (Hartley v. Urban Outfitters, Inc., No. 23-4891, 2024 WL 3445004, at *7 (E.D. Pa. July 17, 2024). Indeed, federal courts in California interpreting other sections of CIPA in the analogous context of Article III standing have been unequivocal in their holdings that a plaintiff must allege the collection or disclosure of their specific personal information. See, e.g., Lightoller v. Jetblue Airways Corp., No. 23-cv-361-H, 2023 WL 3963823, at *4 (S.D. Cal. June 12, 2023) (finding no injury in fact because “Plaintiffs complaint does not allege that she disclosed any personal information to Defendant” so plaintiff “failed to adequately allege that she suffered any concrete harm that bears a close relationship to the right to control personal information”). Here, Plaintiff must allege which of his specific information was allegedly collected by the TikTok Software.

            As to the second contention, section 638.51 states that “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.” Cal. Penal Code § 638.51(a). A “pen register” is 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.” (Id. § 638.50(b).) A “trap and trace device” is 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.” Id. § 638.50(c).

The definitions of “pen register” and “trap and trace device” do not expressly state whether they include software such as the TikTok Software. However, the Court agrees with Defendants that the cross-referenced provisions in the statute, sections 638.52 and 638.53, suggest that they do not.

The Central District of California, dealing with a “digital analyzer” device that, similar to Plaintiff’s allegations here, intercepted a cellular telephone’s “non-communicative signals,” has held that it was neither a “pen register” nor “trap and trace device” under the Pen Register Act because it did not require attachment to a telephone line. (See Application of U.S. of Am. For an Ord. Authorizing Use of a Cellular Tel. Digital Analyzer, 885 F. Supp. 197, 199–200 (C.D. Cal. 1995). Interpreting a substantially similar definition of “trap and trace device” as that used in CIPA,1 Cellular Tel. Digital Analyzer construed the definition in light of the overall Pen Register Act and held that “trap and trace device” “include[s] only devices that are attached to a telephone line.” (Cellular Tel. Digital Analyzer, 885 F. Supp. at 200 (citing 18 U.S.C. § 3123(b)). Here, Plaintiff does not allege a device attached to a telephone line.

            Moreover, the legislative history of Section 638.51 further supports the conclusion that the Legislature did not intend for Section 638.51 to apply to commercial websites utilizing software such as the TikTok Software. (See Demurrer, 11:19- 15:4.)

            As to the third contention, A “provider of electronic . . . communication service may use a pen register . . . [t]o operate . . . a[n] . . . electronic communication service.” (Cal. Penal Code § 638.51(b)(1).) Here, Defendant, would be an electronic communication service provider within the meaning of Section 638.51 because it operates an “electronic communication service”—namely, its website. As such, Safelite using a “pen register” as part of operating its website would not amount to a violation of Section 638.51.

            Finally, as for the fourth contention, to state a claim under Section 638.51, Plaintiff must allege that Safelite used “a pen register or a trap and trace device without first obtaining a court order.” (See Cal. Penal Code § 638.51(a).) As stated above, “Pen register means 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.” (Id. § 638.50(b).)

Courts interpreting other sections of CIPA have consistently found that “software” does not constitute a “device” within the meaning of the statute. (See, e.g., Doe v. Microsoft, No. C23- 0718-JCC, 2023 WL 8780879, at *8 (W.D. Wash. Dec. 19, 2023) (finding that software does not constitute a “device” under Cal. Penal Code § 632); In re Google Location Hist. Litig., 428 F. Supp. 3d 185, 193 (N.D. Cal. 2019) (finding that software does not constitute a “device” under Cal. Penal Code § 637.7); Moreno v. San Francisco Bay Area Rapid Transit Dist., No.17-CV02911-JSC, 2017 WL 6387764, at *4–5 (N.D. Cal. Dec. 14, 2017) (same).

Here, Plaintiff alleges that “Defendant uses a trap and trace process on its website by deploying the TikTok Software on its Website, because the software is designed to capture the phone number, email, routing, addressing, and other signaling information of website visitors” (Compl. ¶ 28.) As noted by Defendant, there does not appear to be any California state court case holding that software constitutes a “process” within in the meaning of Section 638.51.

The Court will afford Plaintiff an opportunity to allege facts and set forth law which could show that he can state a viable claim for a violation of Section 638.51.

Based on the foregoing, Defendant’s demurrer is sustained, with 20 days leave to amend.

It is so ordered.

Dated:  November    , 2024

   Hon. Jon R. Takasugi
   Judge of the Superior Court

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